<PAGE>
As filed with the Securities and Exchange Commission on April 6, 2000
Registration No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
VISHAY INTERTECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-1686453
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
___________
63 Lincoln Highway
Malvern, Pennsylvania 19355-2120
(610) 644-1300
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
___________
Avi D. Eden
63 Lincoln Highway
Malvern, Pennsylvania 19355-2120
(610) 644-1300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________
Copy to:
Scott S. Rosenblum, Esq.
Abbe L. Dienstag, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
__________
<PAGE>
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, 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. []
(Cover continued on next page)
___________
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
(Cover continued from previous page)
___________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class of Amount to Proposed Proposed Amount of
securities to be be registered maximum maximum registration fee
registered offering price aggregate
per unit(1) offering price(1)
<S> <C> <C> <C> <C>
Debt Securities(2)
- ----------------------------------------------------------------------------------------------------
Common Stock, par
value $0.10 per
share (3)(4)(5)
- ----------------------------------------------------------------------------------------------------
Total $600,000,000 100% $600,000,000 $158,400
(6) (6) (7)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended,
and exclusive of accrued interest, if any.
(2) Subject to note (6) below, there are being registered hereunder an
indeterminate principal amount of debt securities. If any debt
securities are being issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed
$600,000,000, less the dollar amount of any securities previously
issued hereunder.
(3) Subject to note (6) below, there are being registered hereunder an
indeterminate number of common shares as may be sold, from time to
time, by the Registrant.
(4) Including such indeterminable number of common shares which may from
time to time be issued upon conversion or exchange of debt securities
registered hereunder,
<PAGE>
to the extent any of such debt securities are by their terms
convertible into such common shares. Under Rule 457(i), no fee is
payable with respect to such common shares.
(5) With attached rights to purchase additional common shares in certain
circumstances. These rights trade with the common shares and their
value, if any, is reflected in the market price of the common shares.
(6) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration
Statement exceed $600,000,000, or its equivalent if some or all of the
debt securities are denominated in one or more foreign currencies,
foreign currency units or composite currencies. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(7) The amount of registration fee, calculated in accordance with Section
6(b) of the Securities Act of 1933, as amended, and Rule 457(o)
promulgated thereunder, is .000264 of the maximum aggregate offering
price at which the securities registered pursuant to this Registration
Statement are proposed to be offered.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 6, 2000
PROSPECTUS
$600,000,000
Vishay Intertechnology, Inc.
Debt Securities
Common Stock
___________
Vishay Intertechnology, Inc. may offer from time to time:
o unsecured debt securities; and
o common stock.
Certain stockholders of Vishay may also sell common stock.
The specific terms and amounts of the securities, and the identities of and
other information regarding any selling stockholders, will be fully described in
a prospectus supplement that will accompany this prospectus. Please read both
the prospectus supplement and this prospectus carefully before you invest.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
___________
Investing in debt securities or common stock involves risks that are
described in the "Risk Factors" section beginning on Page 6 of this prospectus.
___________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
document is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2000.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
In connection with this offering, Vishay has filed with the Securities and
Exchange Commission a registration statement under the Securities Act of 1933,
relating to the securities. As permitted by the SEC rules, this document omits
certain information included in the registration statement. For a more complete
understanding of the securities and this offering, you should refer to the
registration statement, including its exhibits.
Vishay files annual, quarterly and current reports, proxy statements and
other information with the SEC. Vishay's filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also
read and copy any document Vishay files with the SEC at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Vishay's common shares are listed on the New York Stock
Exchange under the symbol "VSH". You can obtain information about Vishay from
the New York Stock Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows Vishay to "incorporate by reference" information contained in
documents filed with the SEC, which means that Vishay can disclose important
information to you by referring you to those documents. These incorporated
documents contain important business and financial information about Vishay that
is not included in or delivered with this document. The information
incorporated by reference is considered to be part of this document, and later
information filed with the SEC may update and supersede this information.
Vishay incorporates by reference its Annual Report on Form 10-K for the year
ended December 31, 1999 and any future filings made with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the United States Securities Exchange Act of 1934
prior to the end of the offering of securities under this document.
You may request a copy of these filings at no cost, by writing or calling
Vishay at the following address and telephone number:
Vishay Intertechnology, Inc.
63 Lincoln Highway
Malvern, Pennsylvania 19355-2120
(610) 644-1300
Attention: Richard N. Grubb
Exhibits to the filings will not be sent, however, unless those exhibits
have specifically been incorporated by reference in this document.
-2-
<PAGE>
You should rely only on the information provided or incorporated by
reference in this document. Vishay has not authorized anyone else to provide
you with different information. You should not assume that the information in
this document is accurate as of any date after the date on the front of this
document.
This document is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where the offer
or sale is not permitted.
-3-
<PAGE>
TABLE OF CONTENTS
Page
----
Where You Can Find More Information............................. 2
Forward Looking Information..................................... 4
Risk Factors.................................................... 6
Vishay.......................................................... 10
Use of Proceeds................................................. 11
Ratio of Earnings to Fixed Charges.............................. 11
Description of the Debt Securities.............................. 12
Description of Capital Stock.................................... 21
Plan of Distribution............................................ 22
Legal Matters................................................... 23
Experts......................................................... 23
FORWARD LOOKING INFORMATION
Certain statements contained or incorporated by reference in this document
are "forward looking statements" within the meaning of the U.S. Private
Securities Litigation Reform Act of 1995. All forward looking statements
involve risks and uncertainties. In particular, any statement contained in this
document or any document incorporated by reference in this document regarding
demand for the Company's products, future sales, operating margins and
efficiencies, the consummation and benefits of future acquisitions, and product
development and expansion, are subject to known and unknown risks, uncertainties
and contingencies, many of which are beyond the control of Vishay, which may
cause actual results, performance or achievements to differ materially from
anticipated results, performances or achievements. Factors that might affect
such forward looking statements include, among other things:
. a decline in demand for Vishay's products by customers, including OEMs and
distributors,
. backlog cancellations,
. failure to maintain the current strong pricing environment which has resulted
from shortages of products manufactured by Vishay,
. competitive pressures,
. recessionary trends,
. currency fluctuations and
. the application of relevant accounting principles and any changes in such
principles.
-4-
<PAGE>
. changes in laws
. cancellation of government grants or tax benefits
. labor unrest
. factory under-utilization and
. capacity constraints.
Please see Vishay's 1999 Annual Report on Form 10-K incorporated by
reference in this prospectus for a more comprehensive list of these factors.
See also "Risk Factors."
-5-
<PAGE>
RISK FACTORS
An investment in the securities offered through this prospectus involves
certain risks. You should carefully consider the following risks, as well as
other information contained elsewhere in this prospectus or incorporated by
reference in this prospectus.
Current Strong Demand for Vishay's Products
The current strong demand for Vishay's products may not continue.
Vishay is currently benefiting from strong demand for the products produced
by Vishay's customers, which has created strong demand for and an acute shortage
of the types of products manufactured by Vishay. This shortage has enabled
Vishay to increase prices for certain products, thereby increasing its gross
margins, and has also increased sales volumes. The current strong demand may not
continue. In the past, adverse economic trends that resulted in a slowdown in
demand for electronic components materially and adversely impacted Vishay's
results of operations. A decrease in the current demand for Vishay's products or
an increase in supply due to the expansion of production capacity by Vishay's
competitors could cause a significant drop in average sales prices, which could,
in turn, cause a reduction in Vishay's gross margins and operating profits.
Vishay may not have adequate facilities to satisfy the current strong demand for
its products.
Vishay may have difficulty expanding its manufacturing to satisfy the
current strong demand for its products. Factors which could limit such
expansion include delays in procurement of manufacturing equipment, shortages of
skilled personnel and capacity constraints at Vishay's facilities. If Vishay is
unable to meet its customers' requirements and its competitors sufficiently
expand production, Vishay could lose customers and/or market share. This could
have an adverse effect on Vishay's financial condition and results of operation.
General Business Risks
To remain successful, Vishay must continue to innovate.
Vishay's future operating results are dependent on its ability to
continually develop, introduce and market new and innovative products, to modify
existing products to respond to technological change and to customize certain
products to meet customer requirements. There are numerous risks inherent in
this process, including the risks that Vishay will be unable to anticipate the
direction of technological change or that Vishay will be unable to develop and
market new products and applications in a timely fashion to satisfy customer
demands. If this occurs, Vishay could lose customers and experience adverse
effects on its financial condition and results of operation.
In the past Vishay has grown through acquisition but this may not continue.
Vishay's historic growth in revenues and net earnings has resulted in large
part from its strategy of expansion through acquisitions. However, we cannot
assure you that Vishay will
-6-
<PAGE>
identify or succeed in consummating transactions with suitable acquisition
candidates in the future. From time to time, when Vishay is in the process of
pursuing a strategic acquisition, Vishay or the acquisition target may feel
compelled in order to comply with applicable law or for other reasons to
announce the potential acquisition or Vishay's desire to enter into a certain
market prior to the parties' entering into formal agreements. If an acquisition
is announced and then not consummated, Vishay's credibility in the financial
markets could suffer.
Vishay's results are sensitive to raw material availability, quality and cost.
Many of Vishay's products require the use of raw materials which are
produced in only a limited number of regions around the world or are available
from only a limited number of suppliers. Vishay's results of operations may be
adversely affected if Vishay has difficulty obtaining these raw materials, the
quality of available raw materials deteriorates or if there are significant
price increases for these raw materials.
Vishay is a major consumer of the world's annual production of tantalum, a
material used in the manufacture of tantalum capacitors. There are currently
three major suppliers that process tantalum ore into capacitor grade tantalum
powder. Vishay believes that in the long term there exist sufficient tantalum
ore reserves and a sufficient number of tantalum processors to satisfy demand.
However, in the short term, there may be shortages of tantalum powder which
could lead to increased prices that Vishay may not be able to pass on to its
customers.
Palladium, which is used to produce multi-layer ceramic capacitors, is
currently found primarily in South Africa and Russia. Palladium is a commodity
product that is subject to price volatility. The price of palladium fluctuated
in the range of approximately $127 to $440 per troy ounce during the three years
ended December 31, 1999. Since that time, it has been as high as $775 per troy
ounce, and on April 5, 2000, it was $590 per troy ounce. Vishay believes that
there may be a short-term shortage of palladium, which may affect the cost of
palladium and Vishay's ability to increase production of multi-layer ceramic
capacitors to meet increased demand. Vishay may be unable to pass on the
increased palladium costs to its customers, which would have an adverse effect
on the margins of those products using this metal.
Vishay's backlog is subject to customer cancellation.
Many of the orders that comprise Vishay's backlog may be canceled by
customers without penalty. Customers may on occasion double and triple order
components from multiple sources to ensure timely delivery when backlog is
particularly long. Therefore, Vishay cannot be certain the amount of its
backlog has not been overstated. Vishay's results of operations could be
adversely impacted if customers were to cancel a material portion of orders in
Vishay's backlog and this produced a significant decrease in demand for Vishay's
products.
Vishay faces intense competition in its business.
Vishay's business is highly competitive worldwide, with low transportation
costs and few import barriers. Vishay competes principally on the basis of
product quality and reliability, availability, customer service, technological
innovation, timely delivery and price. The electronics components industry has
become increasingly concentrated and globalized in recent years and Vishay's
major competitors, some of which are larger than Vishay, have significant
financial resources and technological capabilities.
Future changes in Vishay's environmental liability and compliance obligations
may harm Vishay's ability to operate or increase costs.
Vishay's manufacturing operations are subject to environmental laws and
regulations governing air emissions, wastewater discharges, the handling,
disposal and remediation of hazardous substances and certain chemicals used and
generated in Vishay's manufacturing processes, and employee health and safety.
More stringent environmental regulations may be enacted in the future, and
Vishay cannot presently determine the modifications, if any, in Vishay's
operations that any such future regulations might require, or the cost of
compliance with these regulations. In order to resolve liabilities at various
sites, Vishay has entered into various
-7-
<PAGE>
administrative orders and consent decrees, some of which may, under certain
conditions, be reopened or subject to renegotiation.
International Operations and Sales; Restructuring to Lower Cost Regions
Vishay derives a substantial amount of its revenues from outside the United
States.
Approximately 71% of Vishay's revenues during 1999 were derived from sales
to customers outside the United States. Vishay's operating results could be
adversely affected by currency exchange rate fluctuations, regional inflation,
changes in monetary policy and tariffs, changes in local laws and regulations in
foreign jurisdictions, international trade restrictions, intergovernmental
disputes, local laws that increase labor costs and reduction or cancellation of
government grants, tax benefits or other incentives.
Vishay obtains substantial benefits by operating in Israel, but these benefits
may not continue.
Vishay has increased its operations in Israel over the past several years.
The low tax rates in Israel applicable to earnings of Vishay's operations in
that country, compared to the rates in the U.S., have had the effect of
increasing Vishay's net earnings. In addition, Vishay has taken advantage of
certain incentive programs in Israel, which take the form of grants designed to
increase employment in Israel. Any significant increase in the Israeli tax
rates or reduction or elimination of the Israeli grant programs that have
benefited Vishay could have an adverse impact on Vishay's results of operations.
See Note 1 to the Consolidated Financial Statements in Vishay's 1999 Annual
Report on Form 10-K incorporated by reference in this prospectus for a
description of Vishay's accounting policy for grants received by certain
subsidiaries from governments outside the United States.
Vishay attempts to improve profitability by operating in countries in which
labor costs are low, but the shift of operations to these regions may entail
considerable expense.
Vishay's strategy is aimed at achieving significant production cost savings
through the transfer and expansion of manufacturing operations to and in
countries with lower production costs, such as Israel, Mexico, Portugal, the
Czech Republic, Taiwan and the People's Republic of China. In this process,
Vishay may experience under-utilization of certain plants and factories in high
labor cost regions and capacity constraints in plants and factories located in
low labor cost regions. This may result initially in production inefficiencies
and higher costs. Such costs include those associated with compensation in
connection with work force reductions and plant closings in the higher labor
cost regions, and start-up expenses, manufacturing and construction delays, and
increased depreciation costs in connection with the initiation or expansion of
production in lower labor cost regions. For example, during 1998, restructuring
costs were particularly high as a result of Vishay's accelerated effort to
streamline operations in response to the continued weakness in the international
electronic components market at the time.
As Vishay implements transfers of certain of its operations it may
experience strikes or other types of labor unrest as a result of lay-offs or
termination of Vishay's employees in high labor cost countries.
-8-
<PAGE>
The Class B Common Stock
The holders of Class B common stock have voting control of Vishay.
The holders of common stock are entitled to one vote for each share held,
while the holders of Class B common stock are entitled to 10 votes for each
share held. Currently, the holders of the Class B common stock hold 57.8 % of
the voting power of Vishay. As a result, the holders of Class B common stock
are able to cause the election of their nominees as directors of Vishay. The
holders of the Class B common stock may also be able to approve other action as
stockholders without obtaining the votes of other stockholders of Vishay.
The existence of the Class B common stock may deprive other stockholders of a
premium value for their shares in a takeover.
The effective control of Vishay by holders of the Class B common stock may
make Vishay less attractive as a target for a takeover proposal. It may also
render more difficult or discourage a merger proposal or proxy contest for the
removal of the incumbent directors, even if such actions were favored by all
stockholders of Vishay other than the holders of the Class B common stock.
Accordingly, this may deprive the holders of common stock of an opportunity they
might otherwise have to sell their shares at a premium over the prevailing
market price in connection with a merger or acquisition of Vishay with or by
another company.
-9-
<PAGE>
VISHAY
Vishay is a leading international manufacturer and supplier of discrete
passive electronic components and discrete active electronic components,
particularly resistors, capacitors, inductors, diodes and transistors. Passive
electronic components and discrete active electronic components are primary
elements of virtually every electronic circuit. Vishay offers its customers
"one-stop" access to one of the most comprehensive electronic component lines of
any manufacturer in the United States or Europe. Vishay manufactures one of the
broadest lines of surface mount devices, a format for electronic components that
has evolved into the standard required by most customers. Vishay also continues
to produce components in the traditional leaded form. Components manufactured
by Vishay are used in virtually all types of electronic products, including
those in the computer, telecommunications, military/aerospace, instrument,
automotive, medical and consumer electronics industries.
Vishay is a Delaware corporation. Its principal executive offices are
located at 63 Lincoln Highway, Malvern, Pennsylvania 19355-2120, and its
telephone number there is (610) 644-1300.
-10-
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, Vishay
intends to use the net proceeds from the sale of the securities to refinance, in
part, existing indebtedness, to finance acquisitions and for general corporate
purposes. Funds not required immediately for such purposes may be invested
temporarily in short-term marketable securities.
Vishay will not receive the proceeds of the sale of common stock by any
selling stockholder, except for the exercise price of any stock options through
which some stockholders may have acquired the shares of common stock that they
sell.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
Vishay for the years ended December 31, 1999, 1998, 1997, 1996 and 1995.
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges(1)................... 3.16 1.72 4.96 4.36 4.67
==== ==== ==== ==== ====
</TABLE>
___________
(1) For the purpose of determining the ratio of earning to fixed charges,
earnings consist of income before minority interest, income taxes and fixed
charges, less equity in net income of affiliate. Fixed charges consist of
interest expense, amortization of deferred issue costs and the portion of rent
expense representative of interest.
-11-
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES
The debt securities will be issued under an indenture between Vishay and
the trustee under the indenture. The following description is subject to the
detailed provisions of the indenture, a copy of which can be obtained upon
request from Vishay. See "Where You Can Find More Information" on page 2. The
indenture is subject to, and governed by, the Trust Indenture Act of 1939. The
statements made in this section relating to the indenture and to the debt
securities to be issued under the Indenture are summaries and do not purport to
be complete. For a full description of the terms of the debt securities, you
should refer to the indenture, as supplemented by any applicable supplemental
indentures.
The following is a description of the general terms and provisions of the
debt securities set forth in the indenture and which may apply to any series of
debt securities. The particular terms of a series of debt securities and the
extent, if any, to which these general terms do not apply to such debt
securities, will be set forth in a supplemental indenture and described in the
prospectus supplement relating to the particular series of debt securities. See
"Prospectus Supplements" below. Accordingly, for a description of the terms and
provisions of any particular series of debt securities, you must refer to both
this description and the description of such particular series contained in the
applicable prospectus supplement.
General
The debt securities will be direct, unsecured obligations of Vishay and
rank equally with other unsecured obligations of Vishay for money borrowed. The
debt securities will be effectively subordinated to all existing and future
indebtedness and other liabilities of Vishay's subsidiaries. Vishay's rights
and the rights of its creditors, including holders of debt securities, to
participate in any distribution of assets of any subsidiary upon a liquidation
or reorganization or otherwise of such subsidiary will be effectively
subordinated to the claims of the subsidiary's creditors, except to the extent
that Vishay or any of its creditors may itself be a creditor of that subsidiary.
The indenture does not limit other indebtedness or securities which may be
incurred or issued by Vishay or any of its subsidiaries or contain financial or
similar restrictions on Vishay or any of its subsidiaries. There are no
covenants or provisions contained in the indenture which afford the holders of
debt securities protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving Vishay.
The consummation of any highly leveraged transaction, reorganization,
restructuring, merger or similar transaction could cause a material decline in
the credit quality of any outstanding debt securities.
Debt securities may be issued either in certificated, fully registered
form, without coupons, or as global notes under a book-entry system. See "Book-
Entry, Delivery and Form" below. Upon receipt of an authentication order from
Vishay together with any other documentation required by the indenture, the
trustee will authenticate debt securities in the form and amount required by the
supplemental indenture relating to the series of debt securities.
-12-
<PAGE>
Principal and premium, if any, will be payable, and the debt securities
will be transferable and exchangeable without any service charge, at the office
of the trustee. Vishay may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection with any such transfer or
exchange.
The indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder.
Prospectus Supplements
The following terms of and information relating to a particular series of
debt securities offered pursuant to this document will be set forth in the
applicable prospectus supplement:
. the title of the debt securities
. the aggregate principal amount of the debt securities
. the date or dates on which principal of, and premium, if any, on the
debt securities is payable
. the rate at which the debt securities shall bear interest, if any, or
the method by which the interest rate will be determined
. the date or dates from which interest will accrue and on which
interest will be payable and any related record dates
. any redemption, repayment or sinking fund provisions
. the terms, if any, upon which the debt securities may be convertible
into or exchanged for securities of any kind of Vishay or of any other
issuer or obligor and the terms and conditions upon which such
conversion or exchange shall be effected
. the terms, if any, upon which the debt securities may be subordinated
to any other indebtedness of Vishay
. the denominations in which the debt securities will be issuable
. any applicable material income tax considerations
. if other than the principal amount of the debt securities, the portion
of the principal amount due upon acceleration
. whether the debt securities will be issued in the form of a global
security or securities
-13-
<PAGE>
. any covenants, including any restrictive covenants, of Vishay with
respect to the debt securities provided in an applicable supplemental
indenture
. if applicable, the terms and conditions pursuant to which Vishay can
discharge certain obligations under the indenture with respect to any
series of debt securities by depositing with the trustee funds in an
amount sufficient to pay at maturity or upon redemption the principal,
premium and interest on such debt securities
. any other specific terms of the debt securities
. if other than the trustee named in the indenture, the identity of any
trustees, paying agents or registrars with respect to the debt
securities
Book-Entry, Delivery and Form
The Global Notes
A series of debt securities may be issued in whole or in part in the form
of one or more global securities under a book-entry system. Each global
security:
. will be deposited with, or on behalf of, The Depository Trust Company,
and registered in the name of Cede & Co., as DTC's nominee, or
. will remain in the custody of the trustee pursuant to a FAST Balance
Certificate Agreement between DTC and the trustee.
Certain Book-Entry Procedures for the Global Notes
The descriptions of the operations and procedures of DTC set forth below
are provided solely as a matter of convenience. These operations and procedures
are solely within the control of DTC and its participants and are subject to
change by them from time to time. Vishay takes no responsibility for these
operations or procedures, and investors are urged to contact DTC or its
participants directly to discuss these matters.
DTC has advised Vishay that it is:
. a limited purpose trust company organized under the laws of the State
of New York,
. a "banking organization" within the meaning of the New York Banking
Law,
. a member of the Federal Reserve System,
-14-
<PAGE>
. a "clearing corporation" within the meaning of Article 8 of the
Uniform Commercial Code, and
. a "clearing agency" registered pursuant to Section 17A of the Exchange
Act.
DTC was created to hold securities for its participants and facilitates the
clearance and settlement of securities transactions between its participants
through electronic book-entry changes to the accounts of its participants,
thereby eliminating the need for physical transfer and delivery of certificates.
DTC's participants include securities brokers and dealers, banks and trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to indirect participants such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. Investors who
are not participants may beneficially own securities held by or on behalf of DTC
only through DTC participants or indirect participants.
Vishay expects that pursuant to procedures established by DTC:
1. upon the deposit of global notes representing debt securities with
DTC, DTC will credit the accounts of its participants with an interest in
the global notes. The accounts to be credited will be designated by the
underwriters or agents, if any, or by Vishay, if such debt securities were
offered and sold directly by Vishay; and
2. ownership of the debt securities will be shown on, and the transfer
of ownership thereof will be effected only through, records maintained by
DTC, with respect to the interests of its participants, and the records of
DTC's participants and indirect participants, with respect to the interests
of other owners of beneficial interest in the debt securities.
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Accordingly, the ability to transfer interests in the debt securities
represented by global notes to such persons may be limited. In addition,
because DTC can act only on behalf of its participants, who in turn act on
behalf of persons who hold interests through a DTC participant, the ability of a
person having an interest in debt securities represented by a global note to
pledge or transfer such interest to persons or entities that do not participate
in DTC's system, or to otherwise take actions in respect of such interest, may
be affected by the lack of a physical definitive security in respect of such
interest.
So long as DTC or its nominee is the registered owner of a global note, DTC
or such nominee, as the case may be, will be considered the sole owner or holder
of the debt securities represented by the global note for all purposes under the
indenture. Except as provided below, owners of beneficial interests in a global
note will not be entitled to have debt securities represented by such global
note registered in their names, will not receive or be entitled to receive
physical delivery of certificated debt securities, and will not be considered
the owners or holders thereof under the indenture for any purpose.
-15-
<PAGE>
Payments with respect to the principal of, and premium, if any, and
interest on, any debt securities represented by a global note registered in the
name of DTC or its nominee on the applicable record date will be payable by the
trustee to or at the direction of DTC or its nominee in its capacity as the
registered holder of the global note representing such debt securities under the
indenture. Under the terms of the indenture, Vishay and the trustee may treat
the persons in whose names the global notes are registered as the owners thereof
for the purpose of receiving payment thereon and for any and all other purposes
whatsoever. Consequently, neither Vishay nor the trustee nor any agent of
Vishay or the trustee has or will have any responsibility or liability for:
. any aspect of DTC's records or any participant's or indirect
participant's records relating to, or payments made on account of, any
beneficial ownership interest in the global notes of any series, or
for maintaining, supervising or reviewing any of DTC's records or any
participant's or indirect participant's records relating to the
beneficial ownership interests of the global notes of such series; or
. any other matter relating to the actions and practices of DTC or any
of its participants or indirect participants.
DTC has advised Vishay that its current practice, upon receipt of any
payment in respect of securities such as the notes including principal and
interest, is to credit the accounts of the relevant participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in the principal amount of beneficial interest in the relevant security
as shown on the records of DTC, unless DTC has reason to believe it will not
receive payment on such payment date. Payments by the participants and the
indirect participants to the beneficial owners of either series of notes will be
governed by standing instructions and customary practices and will be the
responsibility of the participants or the indirect participants and will not be
the responsibility of DTC, the trustee, or Vishay. Neither Vishay nor the
trustee will be liable for any delay by DTC or any of its participants in
identifying the beneficial owners of the notes, and the Company and the trustee
may conclusively rely on and will be protected in relying on instructions from
DTC or its nominee for all purposes.
Certificated Debt Securities
If:
1. Vishay notifies the trustee in writing that DTC is no longer
willing or able to act as a depositary or DTC ceases to be registered as a
clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days of such notice or cessation,
2. Vishay, at its option, notifies the trustee in writing that it
elects to cause the issuance of debt securities in definitive form under
the indenture, or
3. upon the occurrence of certain other events as provided in the
Indenture, then,
-16-
<PAGE>
upon surrender by DTC of the global notes representing the debt securities,
certificated debt securities will be issued in the names and denominations
requested by DTC in accordance with its customary procedures. Upon any such
issuance, the trustee is required to register the certificated debt securities
in the names of the designated persons, or their nominees, and cause the
certificates to be delivered to them.
Neither Vishay nor the trustee shall be liable for any delay by DTC or any
DTC participant or indirect participant in identifying the beneficial owners of
the related debt securities and each such person may conclusively rely on, and
shall be protected in relying on, instructions from DTC for all purposes.
Merger, Consolidation, Sale or Conveyance
The indenture provides that Vishay will not merge or consolidate with any
other corporation or person and will not sell or convey all or substantially all
of its assets to any person, unless:
1. Vishay is the continuing corporation, or
2. the successor corporation or person that acquires all or
substantially all of the assets of Vishay, shall expressly assume,
. the payment of principal of, premium, if any, and interest on all debt
securities issued under the indenture, and
. the observance of all the covenants and agreements under the indenture
to be performed or observed by Vishay,
and in either case, immediately after such merger, consolidation, sale or
conveyance, Vishay, or such successor corporation or person, as the case may be,
shall not be in default in the performance of the covenants and agreements of
the indenture to be performed or observed by Vishay.
Events of Default
An event of default with respect to a series of debt securities issued
under the indenture is defined in the indenture as being:
. a default for 30 days in payment of any interest on any debt
securities of such series;
. a default in any payment of principal of, or sinking fund installment,
if any, on, any debt securities of such series;
-17-
<PAGE>
. a default by Vishay in performance of any other of the covenants or
agreements in respect of the debt securities of such series or the
indenture that continues for 90 days after Vishay has been given
notice of such failure in accordance with the indenture;
. certain events involving bankruptcy, insolvency or reorganization of
Vishay.
The indenture provides that the trustee shall transmit notice of any
uncured default under the indenture with respect to any series of debt
securities issued thereunder, within 90 days after the occurrence of such
default, to the holders of the debt securities of each affected series, except
that the trustee may withhold notice to the holders of any series of debt
securities of any default, except in payment of principal of, premium, if any,
or interest on such series, if the trustee considers it in the interest of the
holders of such series of debt securities to do so.
If an event of default due to:
. the default in payment of interest, principal or sinking fund
installment with respect to any series of debt securities issued under
the indenture, or
. the default in the performance or breach of any other covenant or
agreement of Vishay applicable to such series but not applicable to
all outstanding debt securities issued under the indenture,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of the debt securities of such series then
outstanding may declare the principal of all debt securities of such series and
interest accrued thereon to be due and payable immediately.
If an event of default due to:
. a default in the performance or breach of any other of the covenants
or agreements of Vishay applicable to all outstanding debt securities
issued under the indenture;
. certain events of bankruptcy, insolvency and reorganization of Vishay,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of all debt securities issued under the
indenture and then outstanding, treated as one class, may declare the principal
of all such debt securities and interest accrued thereon to be due and payable
immediately.
Upon certain conditions, such declarations may be annulled and past
defaults may be waived by the holders of a majority in principal amount of the
outstanding debt securities of an affected series, voting as a separate class,
or all debt securities outstanding under the indenture, voting as a single
class, as the case may be. Past defaults may be waived in this manner only if
-18-
<PAGE>
Vishay has paid all previously matured interest and principal payments, other
than payments that became due by acceleration.
The holders of a majority in principal amount of the outstanding debt
securities of each affected series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee with respect to the debt securities of such series, subject to certain
limitations specified in the indenture.
The indenture provides that no holder of debt securities of any series may
institute any action against Vishay under the indenture, except actions for
payment of overdue principal, premium, if any, or interest, unless such holder
previously shall have given to the trustee written notice of default and
continuance thereof and unless the holders of not less than 25% in principal
amount of the debt securities of such series then outstanding shall have
requested the trustee to institute such action and shall have offered the
trustee reasonable indemnity, and the trustee shall not have instituted such
action within 60 days of such request, and the trustee shall not have received
direction inconsistent with such request by the holders of a majority in
principal amount of the debt securities of such series then outstanding.
The indenture requires the annual filing by Vishay with the trustee of a
written statement as to compliance with the covenants and agreements contained
in the indenture.
Modification of the Indenture
The indenture contains provisions permitting Vishay and the trustee, with
the consent of the holders of not less than a majority of the principal amount
of all affected series of the debt securities issued under the indenture at the
time outstanding, voting as one class, to modify the indenture or any
supplemental indenture or the rights of the holders of the debt securities of
such series. Without the consent of the holder of each debt security affected,
the indenture cannot be modified to:
1. extend the final maturity of any of the debt securities or reduce
the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or reduce the amount of any original issue discount security
payable upon acceleration or provable in bankruptcy or impair or affect the
right of any holder of the debt securities to institute suit for the
payment thereof, or
2. alter the requirement that, the consent of the holders of each debt
security affected is required for any such modification.
The indenture contains provisions permitting Vishay and the trustee,
without the consent of any holders of debt securities, to enter into a
supplemental indenture, among other things, for purposes of
. curing any ambiguity,
-19-
<PAGE>
. correcting or supplementing any provision contained in the indenture
or in any supplemental indenture or making other provisions in regard
to the matters or questions arising under the indenture or any
supplemental indenture as the Board of Directors of Vishay deems
necessary or desirable and which does not adversely affect the
interests of the holders of debt securities in any material respect,
or
. establishing the form or terms of any series of debt securities as are
not otherwise inconsistent with any of the provisions of the
indenture.
Concerning the Trustee
The trustee may hold debt securities issued under the indenture, act as a
depository for funds of, make loans to, or perform other services for, Vishay
and its subsidiaries as if it were not the trustee.
-20-
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The aggregate number of shares of capital stock which Vishay has authority
to issue is 171,000,000 shares: 1,000,000 shares of preferred stock, par value
$1.00 per share, 150,000,000 shares of common stock, par value $.10 per share,
and 20,000,000 shares of Class B common stock, par value $.10 per share. No
shares of preferred stock have been issued. At April 4, 2000, there were
75,700,828 shares of common stock and 10,369,932 shares of Class B common stock
outstanding.
After any required payment on shares of preferred stock, holders of common
stock and Class B common stock are entitled to receive, and share ratably on a
per share basis, all dividends and other distributions declared by the Board of
Directors of Vishay. In the event of a stock dividend or stock split, holders
of common stock will receive shares of common stock and holders of Class B
common stock will receive shares of Class B common stock. Neither the common
stock nor the Class B common stock may be split, divided or combined unless the
other is split, divided or combined equally.
The holders of common stock are entitled to one vote for each share held.
Holders of Class B common stock are entitled to 10 votes for each share held.
The common stock and the Class B common stock vote together as one class on all
matters subject to stockholder approval, except as set forth in the following
sentence. The approval of the holders of common stock and of Class B common
stock, each voting separately as a class, is required to authorize issuances of
additional shares of Class B common stock other than in connection with stock
splits and stock dividends.
Shares of Class B common stock are convertible into shares of common stock
on a one-to-one basis at any time at the option of the holder thereof. The
Class B common stock is not transferable except to the holder's spouse, certain
of such holder's relatives, certain trusts established for the benefit of the
holder, the holder's spouse or relatives, corporations and partnerships
beneficially owned and controlled by such holder, such holder's spouse or
relatives, charitable organizations and such holder's estate. Upon any transfer
made in violation of those restrictions, shares of Class B common stock will be
automatically converted into shares of common stock on a one-for-one basis.
Neither the holders of common stock nor the holders of Class B common stock have
any preemptive rights to subscribe for additional shares of capital stock of
Vishay.
The common stock is listed on the New York Stock Exchange. There is no
public market for shares of Company's Class B common stock. All outstanding
shares of common stock and Class B common stock are, and upon issuance, the
shares of common stock to be sold hereunder will be, validly issued, fully paid
and non-assessable.
Vishay furnishes to its stockholders annual reports containing financial
statements certified by an independent public accounting firm. In addition,
Vishay furnishes to its stockholders quarterly reports containing unaudited
financial information for each of the first three quarters of each year.
-21-
<PAGE>
American Stock Transfer & Trust Company is the transfer agent and registrar
of Vishay's common stock and Class B common stock.
PLAN OF DISTRIBUTION
Vishay and any selling stockholders may sell securities to or through
underwriters or dealers, and also may sell securities directly to other
purchasers or through agents. Each prospectus supplement will describe the
method of distribution of the offered securities and the identities of any
selling stockholders. Dr. Felix Zandman, Vishay's chief executive officer, will
not be a selling stockholder.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of securities, underwriters may receive
compensation from Vishay and any selling stockholders or from purchasers of
securities for whom they may act as agents in the form of discounts,
concessions, or commissions. Underwriters may sell securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions, or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Dealers, and agents that
participate in the distribution of securities may be deemed to be underwriters,
and any discounts or commissions received by them from Vishay and any profit on
the resale of securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933. Any such underwriter or agent
will be identified, and any such compensation received from Vishay will be
described, in the prospectus supplement.
Underwriters and agents who participate in the distribution of securities
may be entitled under agreements which may be entered into by Vishay and the
selling stockholders, if any, to indemnification by Vishay and the selling
stockholders, if any, against certain liabilities, including liabilities under
the Securities Act of 1933.
If so indicated in the applicable prospectus supplement, Vishay and the
selling stockholders, if any, will authorize underwriters or other persons
acting as Vishay's and the selling stockholders, if any, agents to solicit
offers by certain institutions to purchase offered securities from Vishay and
the selling stockholders, if any, pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include:
. commercial and savings banks,
. insurance companies,
. pension funds,
. investment companies, and
. educational and charitable institutions and others,
-22-
<PAGE>
but in all cases such institutions must be approved by Vishay and the selling
stockholders, if any. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the offered securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
Selling stockholders may also sell their common stock pursuant to Rule 144
under the Securities Act instead of this prospectus.
LEGAL MATTERS
Certain legal matters regarding the securities have been passed upon for
Vishay by Kramer Levin Naftalis & Frankel LLP, New York, New York.
EXPERTS
The consolidated financial statements of Vishay Intertechnology, Inc.,
appearing in Vishay's Annual Report on Form 10-K for the year ended December 31,
1999, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
-23-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the issuance and distribution of
the Securities covered by this registration statement are as follows:
SEC registration fee (actual).................................... $ 158,400
Printing and engraving expenses.................................. $ 200,000
Legal fees and expenses.......................................... $ 100,000
Accounting fees and expenses..................................... $ 50,000
Rating agencies' fees............................................ $ 650,000
Miscellaneous.................................................... $ 91,600
Total $1,250,000
Item 20. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Vishay's certificate of incorporation provides that every person who is or
was a director, officer, employee or agent of the corporation shall be
indemnified by the corporation against all judgments, payments in settlement,
fines, penalties, and other reasonable costs and expenses resulting from any
action, proceeding, investigation or claim which is brought or threatened by or
in the right of Vishay or by anyone else by reason of such person being or
having been a director, officer, employee or agent of Vishay or any act or
omission of such person in such capacity. Such indemnification shall be
available either if such person is wholly successful in defending such action or
if, in the judgment of a court or the Board of Directors or in the opinion of
independent legal counsel, such person acted in good faith in what he reasonably
believed to be in the best interests of the corporation and was not adjudged
liable to the corporation, and, in any criminal
II-1
<PAGE>
action, had no reasonable cause to believe that his action was unlawful. In the
case of a derivative action, such indemnification shall not be made other than
in respect of a court approved settlement or if, in the opinion of independent
counsel, the person satisfied the standard of conduct specified in the prior
sentence, the action was without substantial merit, the settlement was in the
best interest of Vishay and the payment is permissible under applicable law.
Directors may authorize the advancement of reasonable costs and expenses in
connection with any such action to the extent permitted under Delaware law. The
Vishay certificate of incorporation further provides that no director shall have
any personal liability to Vishay or to its stockholders for any monetary damages
for breach of fiduciary duty, to the extent permitted under the Delaware General
Corporation Law.
Vishay maintains $55 million of insurance to reimburse the directors and
officers of Vishay and its subsidiaries, for charges and expenses incurred by
them for wrongful acts claimed against them by reason of their being or having
been directors or officers of Vishay or any of its subsidiaries. Such insurance
specifically excludes reimbursement of any director or officer for any charge or
expense incurred in connection with various designated matters, including libel
or slander, illegally obtained personal profits, profits recovered by Vishay
pursuant to Section 16(b) of the Exchange Act and deliberate dishonesty.
Item 21. Exhibits and Financial Statement Schedules
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
3.1 Composite Amended and Restated Certificate of Incorporation of the Company dated August
3, 1995. Incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended
June 30, 1995 (the "1995 Form 10-Q"). Certificate of Amendment of Composite Amended and
Restated Certificate of Incorporation of the Company. Incorporated by reference to
Exhibit 3.1 to Form 10-Q for the quarter ended June 30, 1997 (the "1997 Form 10-Q").
3.2 Amended and Restated Bylaws of Registrant. Incorporated by reference to Exhibit 3.2 to
Registration Statement No. 33-13833 of Registrant on Form S-2 under the Securities Act
of 1933 (the "Form S-2") and Amendment No. 1 to Amended and Restated Bylaws of
Registrant Incorporated by reference to Exhibit 3.2 to Form 10-K file number 1-7416 for
fiscal year ended December 31, 1993 (the "1993 Form 10-K").
4.1 Form of Indenture
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP
10.1 Vishay Intertechnology, Inc. $825,000,000 Long Term Revolving Credit Agreement, dated as
of March 2, 1998, by and among Vishay, Comerica Bank, Nationsbanc Montgomery Securities
LLC and the other banks signatory thereto, and Comerica Bank, as administrative agent.
Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on
March 17, 1998.
10.2 Vishay Intertechnology, Inc. $275,000,000 Short Term Revolving Credit Agreement, dated
as of March 2, 1998, by and among Vishay, Comerica Bank, Nationsbanc Montgomery
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
Securities LLC and the other banks signatory thereto, and Comerica Bank, as
administrative agent. Incorporated by reference to Exhibit 10.2 to the Current Report
on Form 8-K filed on March 17, 1998.
10.3 Company Guaranty (Long Term), dated March 2, 1998, by Vishay Intertechnology, Inc. to
Comerica Bank, as administrative agent. Incorporated by reference to Exhibit 10.3 to
the Current Report on Form 8-K filed on March 17, 1998.
10.4 Domestic Guaranty (Long Term), dated March 2, 1998, by the Guarantors signatory thereto
to Comerica Bank, as administrative agent. Incorporated by reference to Exhibit 10.4 to
the Current Report on Form 8-K filed on March 17, 1998.
10.5 Foreign Guaranty (Long Term), dated March 2, 1998, by the Guarantors signatory thereto
to Comerica Bank, as administrative agent. Incorporated by reference to Exhibit 10.5 to
the Current Report on Form 8-K filed on March 17, 1998.
10.6 Company Guaranty (Short Term), dated March 2, 1998, by Vishay Intertechnology, Inc. to
Comerica Bank, as administrative agent. Incorporated by reference to Exhibit 10.6 to
the Current Report on Form 8-K filed on March 17, 1998.
10.7 Domestic Guaranty (Short Term), dated March 2, 1998, by the Guarantors signatory thereto
to Comerica Bank, as administrative agent. Incorporated by reference to Exhibit 10.7 to
the Current Report on Form 8-K filed on March 17, 1998.
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Kramer Levin Naftalis & Frankel LLP (contained in the opinion filed as
Exhibit 5.1 hereto)
24 Powers of Attorney (contained on the signature pages hereto)
25 Statement of Eligibility of Trustee on Form T-1*
</TABLE>
___________
* To be filed by amendment.
Item 22. Undertakings
(a) The undersigned Registrant 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 of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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 maximum aggregate offering
price may be reflected in the form of prospectus filed with the SEC
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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities and Exchange Act of
1934 that are incorporated by reference in the registration statement.
2. That, for purposes of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the
II-4
<PAGE>
Registrant 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 Act and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Malvern, State of Pennsylvania, on the 6th day of
April, 2000.
Vishay Intertechnology, inc.
By: /s/ Felix Zandman
---------------------------
Felix Zandman
Director, Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints FELIX ZANDMAN and AVI D. EDEN, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this registration statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such attorneys-in-
fact and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on April 6, 2000
in the capacities indicated below.
Signature Title
--------- -----
/s/Felix Zandman Director, Chairman of the Board, and Chief
- ------------------------------- Executive Officer (Principal Executive Officer)
Felix Zandman
/s/Avi D. Eden Director, Vice-Chairman of the Board,
- ------------------------------- Executive Vice President and General Counsel
Avi D. Eden
/s/Gerald Paul Director, President and Chief Operating Officer
- -------------------------------
Gerald Paul
/s/Richard N. Grubb Director, Executive Vice President,
- ------------------------------- Treasurer and Chief Financial Officer
Richard N. Grubb (Principal Financial and Accounting Officer)
II-6
<PAGE>
/s/Robert A. Freece Director, Senior Vice President
- -------------------------------
Robert A. Freece
/s/Eli Hurvitz Director
- -------------------------------
Eli Hurvitz
/s/Edward B. Shils Director
- -------------------------------
Edward B. Shils
/s/Luella B. Slaner Director
- -------------------------------
Luella B. Slaner
/s/Mark I. Solomon Director
- -------------------------------
Mark I. Solomon
/s/Jean-Claude Tine Director
- -------------------------------
Jean-Claude Tine
II-7
<PAGE>
EXHIBIT 4.1
VISHAY INTERTECHNOLOGY, INC.
AND
___________________________________
as Trustee
Indenture
Dated as of ________ __, 2000
_______________
<PAGE>
Table of Contents
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE DEFINITIONS....................................................................................... 1
SECTION 1.1 Certain Terms Defined............................................................................. 1
ARTICLE TWO SECURITIES........................................................................................ 4
SECTION 2.1 Forms Generally................................................................................... 4
SECTION 2.2 Form of Trustee's Certificate of Authentication................................................... 5
SECTION 2.3 Amount Unlimited; Issuable in Series.............................................................. 5
SECTION 2.4 Authentication and Delivery of Securities......................................................... 6
SECTION 2.5 Execution of Securities........................................................................... 8
SECTION 2.6 Certificate of Authentication..................................................................... 8
SECTION 2.7 Denomination and Date of Securities; Payments of Interest......................................... 8
SECTION 2.8 Registration, Transfer and Exchange............................................................... 9
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities......................................... 10
SECTION 2.10 Cancellation of Securities; Destruction Thereof................................................... 11
SECTION 2.11 Temporary Securities.............................................................................. 11
SECTION 2.12 Securities Issuable in the Form of a Global Security.............................................. 11
ARTICLE THREE COVENANTS OF THE ISSUER AND THE TRUSTEE........................................................... 13
SECTION 3.1 Payment of Principal and Interest................................................................. 13
SECTION 3.2 Offices for Payments, etc......................................................................... 13
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee................................................ 13
SECTION 3.4 Paying Agent...................................................................................... 14
SECTION 3.5 Certificate of the Issuer......................................................................... 14
SECTION 3.6 Securityholders Lists............................................................................. 15
SECTION 3.7 Reports by the Issuer............................................................................. 15
SECTION 3.8 Reports by the Trustee............................................................................ 15
SECTION 3.9 Notice to Trustee................................................................................. 15
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT................................... 15
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default............................. 15
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt..................................... 18
SECTION 4.3 Application of Proceeds........................................................................... 20
SECTION 4.4 Suits for Enforcement............................................................................. 21
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings............................................... 21
SECTION 4.6 Limitations on Suits by Securityholders........................................................... 21
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain Suits................................. 22
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default........................... 22
SECTION 4.9 Control by Securityholders........................................................................ 22
</TABLE>
-i-
<PAGE>
Table of Contents
-----------------
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 4.10 Waiver of Past Defaults........................................................................... 23
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances...................... 23
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs...................................... 24
ARTICLE FIVE CONCERNING THE TRUSTEE............................................................................ 24
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default...................... 24
SECTION 5.2 Certain Rights of the Trustee..................................................................... 25
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof 26
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc.......................................... 26
SECTION 5.5 Moneys Held by Trustee............................................................................ 27
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior Claim................................... 27
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc............................................ 27
SECTION 5.8 Persons Eligible for Appointment as Trustee....................................................... 27
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee......................................... 28
SECTION 5.10 Acceptance of Appointment by Successor Trustee.................................................... 29
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee............................ 30
ARTICLE SIX CONCERNING THE SECURITYHOLDERS.................................................................... 30
SECTION 6.1 Evidence of Action Taken by Securityholders....................................................... 30
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities; Record Date....................... 31
SECTION 6.3 Holders to be Treated as Owners................................................................... 31
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding................................................. 31
SECTION 6.5 Right of Revocation of Action Taken............................................................... 32
ARTICLE SEVEN SUPPLEMENTAL INDENTURES........................................................................... 32
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders........................................ 32
SECTION 7.2 Supplemental Indentures With Consent of Securityholders........................................... 33
SECTION 7.3 Effect of Supplemental Indenture.................................................................. 34
SECTION 7.4 Documents to Be Given to Trustee.................................................................. 34
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures...................................... 34
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OR CONVEYANCE......................................................... 35
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms.................................................... 35
SECTION 8.2 Successor Corporation Substituted................................................................. 35
SECTION 8.3 Opinion of Counsel to Trustee..................................................................... 36
</TABLE>
-ii-
<PAGE>
Table of Contents
-----------------
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS......................................... 36
SECTION 9.1 Satisfaction and Discharge of Indenture........................................................... 36
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance....................................... 37
SECTION 9.3 Defeasance and Discharge.......................................................................... 37
SECTION 9.4 Covenant Defeasance............................................................................... 37
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance................................................... 38
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of Securities............................... 39
SECTION 9.7 Repayment of Moneys Held by Paying Agent.......................................................... 39
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years......................... 40
SECTION 9.9 Indemnity for Direct Obligations of the United States............................................. 40
SECTION 9.10 Reinstatement..................................................................................... 40
ARTICLE TEN MISCELLANEOUS PROVISIONS.......................................................................... 40
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt from Individual Liability.... 40
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders....................... 40
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture............................................... 41
SECTION 10.4 Notices and Demands on Issuer, Trustee and Securityholders........................................ 41
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein................ 41
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays................................................... 42
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939........................... 42
SECTION 10.8 New York Law to Govern............................................................................ 43
SECTION 10.9 Counterparts...................................................................................... 43
SECTION 10.10 Effect of Headings................................................................................ 43
ARTICLE ELEVEN REDEMPTION OF SECURITIES AND SINKING FUNDS........................................................ 43
SECTION 11.1 Applicability of Article.......................................................................... 43
SECTION 11.2 Notice of Redemption; Partial Redemptions......................................................... 43
SECTION 11.3 Payment of Securities Called for Redemption....................................................... 44
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption..................... 45
SECTION 11.5 Mandatory and Optional Sinking Funds.............................................................. 45
</TABLE>
-iii-
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
- ----------- -----------------
310 (a)(1) ............................................ 5.8
(a)(2) ............................................ 5.8
(a)(3) ............................................ N/A
(a)(4) ............................................ N/A
(b) ............................................5.9, 5.10
(c) ............................................ N/A
311 (a) ............................................ 10.7
(b) ............................................ 10.7
(c) ............................................ N/A
312 (a) ............................................ 3.6
(b) ............................................ 10.7
(c) ............................................ 10.7
313 (a) ............................................ 3.8
(b)(1) ............................................ N/A
(b)(2) ............................................ 3.8
(c) ............................................ 10.4
(d) ............................................ 3.8
314 (a) ............................................ 3.5, 3.7
(b) ............................................ N/A
(c)(1) ............................................ 10.5
(c)(2) ............................................ 10.5
(c)(3) ............................................ N/A
(d) ............................................ N/A
(e) ............................................ 10.5
(f) ............................................ 10.5
315 (a) ............................................ 5.1
(b) ............................................4.11, 5.1
(c) ............................................ 5.1
(d) ............................................ 5.1
(e) ............................................4.12, 5.1
316 (a)(last sentence) .................................. 6.4
(a)(1)(A)............................................ 4.9, 5.1
(a)(1)(B)............................................4.2, 4.10, 5.1
(a)(2) ............................................ N/A
(b) ............................................ 4.7
317 (a)(1) ............................................ 4.4
(a)(2) ............................................ 4.4
(b) ............................................ 3.4
318 (a) ............................................ 10.7
(c) ............................................ 10.7
N/A means not applicable
- ----------------
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
-iv-
<PAGE>
THIS INDENTURE, dated as of ________ __, 2000 between VISHAY
INTERTECHNOLOGY, INC., a Delaware company (the "Issuer"), and
___________________, a _______________________ (the "Trustee"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
-----------
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
---------------------
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act
of 1933 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the terms "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United States
at the time of any computation. 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. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Board of Directors" means either the Board of Directors of the Issuer
------------------
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
------------
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of
<PAGE>
such Security, is not a day on which banking institutions are authorized by law
or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
----------------------
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at ______________________, Attention:
____________________.
"Depositary" means, unless otherwise specified by the Issuer pursuant
----------
to either Section 2.3 or 2.14, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Event of Default" means any event or condition specified as such in
----------------
Section 4.1.
"Global Security" means a Security issued to evidence all or part of
---------------
any series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
order which shall be registered in the name of the Depositary or its nominee.
"Holder", "holder of Securities", "Securityholder" or other similar
------ -------------------- --------------
terms mean the registered holder of any Security.
"Indebtedness" means, without duplication, the principal or face
------------
amount of (i) all obligations for borrowed money, (ii) all obligations evidenced
by debentures, notes or other similar instruments, (iii) all obligations to pay
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (iv) all obligations as
lessee which are capitalized in accordance with generally accepted accounting
principles, and (v) all Indebtedness of others guaranteed by the Issuer or any
of its subsidiaries or for which the Issuer or any of its subsidiaries is
legally responsible or liable (whether by agreement to purchase indebtedness of,
or to supply funds or to invest in, others).
"Indenture" means this instrument as originally executed and delivered
---------
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
--------
Securities, interest payable after maturity.
-2-
<PAGE>
"Issuer" means (except as otherwise provided in Article Five) Vishay
------
Intertechnology, Inc., and, subject to Article Eight, its successors and
assigns.
"Officers' Certificate" means a certificate signed by the chairman or
---------------------
any vice chairman of the Board of Directors or the president or any vice
president and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
------------------
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
-------------------
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding", when used with reference to Securities, shall, subject
-----------
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, 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 a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
-3-
<PAGE>
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities or any
---------
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Responsible Officer" when used with respect to the Trustee means the
-------------------
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
-------- ----------
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Trustee" means the Person identified as "Trustee" in the first
-------
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
---------------------------
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Vice president" when used with respect to the Issuer or the Trustee,
--------------
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
-----------------
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
----------
SECTION 2.1 Forms Generally. The Securities of each series shall be
---------------
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture,
-4-
<PAGE>
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
-----------------------------------------------
certificate of authentication on all Securities shall be in substantially the
following form: This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
__________________, as Trustee
By_________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
------------------------------------
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series.
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the
date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
-5-
<PAGE>
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) the terms, if any, upon which the Securities may be convertible
into or exchanged for securities of any kind of the Issuer or of any other
issuer or obligor and the terms and conditions upon which such conversion
or exchange shall be effected;
(9) the terms, if any, upon which the Securities may be subordinated
to any other Indebtedness of the Issuer;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(11) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(12) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(13) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. At any time and from
-----------------------------------------
time to time after the execution and delivery of this Indenture, the Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or vice president and (b) its secretary or any
assistant secretary or its treasurer or any assistant treasurer, without any
further action by the Issuer. In authenticating
-6-
<PAGE>
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 5.1) shall be fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or any
assistant secretary of the Issuer;
(3) an executed supplemental indenture setting forth the form and
terms of the securities as required pursuant to Sections 2.1 and 2.3
respectively, if any;
(4) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.1 and 2.3, respectively and
prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section
10.5, to the effect that
(a) that the form or forms and terms of such Securities have
been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Sections
2.1 and 2.3 in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated in accordance
with the terms of this Indenture and delivered by the Trustee and
issued by and delivered by or to the order of the Issuer, against
payment therefor, in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Issuer;
(c) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have been
complied with; and
(d) covering such other matters as the Trustee may
reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
-7-
<PAGE>
SECTION 2.5 Execution of Securities. The Securities shall be signed on
-----------------------
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) the its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
-----------------------------
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
---------------------------------------------------------
Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.3. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in
-8-
<PAGE>
the payment of the interest due on such interest payment date for such series,
in which case such defaulted interest shall be paid to the persons in whose
names Outstanding Securities for such series are registered at the close of
business on a subsequent record date (which shall not be less than five Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the holders of Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) shall mean the date specified as such in the
terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep or
-----------------------------------
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of
-9-
<PAGE>
redemption of Securities of such series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent 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 interests.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
---------------------------------------------------------
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer 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 Trustees) connected therewith. In case any security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer of the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or
-10-
<PAGE>
payment of mutilated, defaced or destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
-----------------------------------------------
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
--------------------
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.12 Securities Issuable in the Form of a Global Security. (a) If
----------------------------------------------------
the Issuer shall establish pursuant to Section 2.3 that the Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with Section 2.4 and the Issuer order delivered to the Trustee
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect:
-11-
<PAGE>
"Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.12 or of
Section 2.8, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 2.8, only to another nominee of the Depositary for such Global
Security, or by the nominee of the Depositary to the Depositary, or to a
successor Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Issuer that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Issuer shall appoint a successor Depositary with respect to such Global
Security. If a successor Depositary for such Global Security is not appointed
by the Issuer within 90 days after the Issuer receives notice or becomes aware
of such ineligibility, the Issuer's election pursuant to Section 2.3(9) shall no
longer be effective with respect to such Global Security and the Issuer will
execute, and the Trustee, upon receipt of an Issuer order for the authentication
and delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in a definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Issuer order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in a definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities representing such
series in exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.3 with respect
to Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) 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 denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such person's beneficial
interest in the Global
-12-
<PAGE>
Security; and (2) to such Depositary a new Global Security of like tenor and
terms and in a denomination 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.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
---------------------------------------
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
---------------------------------
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the Securities
-------------------------
remain outstanding, the Issuer will maintain in The Borough of Manhattan, The
City of New York for each series: an office or agency (a) where the Securities
may be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c)
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. The Issuer will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Unless otherwise specified in accordance with Section 2.3, the
Issuer hereby initially designates the
______________________________________________, as the office to be maintained
by it for each such purpose. In case the Issuer shall fail to so designate or
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
--------------------------------------------------
whenever necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint, in the manner provided in Section 5.9, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
-13-
<PAGE>
SECTION 3.4 Paying Agent. Whenever the Issuer shall appoint a paying agent
------------
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor of the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4
SECTION 3.5 Certificate of the Issuer. So long as any of the Securities
-------------------------
remain outstanding, the Issuer will furnish to the Trustee on or before March 31
in each year (beginning with 2001) a brief certificate (which need not comply
with Section 10.5) executed by the principal executive, financial or accounting
officer of the Issuer on its behalf as to his or her knowledge of the Issuer's
compliance with all covenants and agreements under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture). Such certificate need not include a
reference to any non-compliance that has been fully cured prior to the date as
of which such certificate speaks.
-14-
<PAGE>
SECTION 3.6 Securityholders Lists. If and so long as the Trustee shall not
---------------------
be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for non-
interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer. So long as any of the Securities remain
---------------------
outstanding, the Issuer covenants to file with the Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports which the
Issuer may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; provided, however, that
the Issuer shall have no obligation to file such reports with the Trustee as
long as no Securities of any series are outstanding.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required under
----------------------
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before July 15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 nor less than 45 days prior thereto. The Trustee also
shall comply with Section 313(b) of the Trust Indenture Act of 1939.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange (if any) on which the
Securities are listed. The Issuer agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 3.9 Notice to Trustee. The Issuer shall provide written notice to
-----------------
the Trustee within 30 days of the occurrence of any Event of Default under
Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
-------------------
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of
-------------------------------------------------------------
Default. "Event of Default" with respect to Securities of any series wherever
- -------
used herein, means each one of the following events which shall have occurred
and be continuing (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:
-15-
<PAGE>
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer in respect of the Securities of such series (other
than a covenant or agreement in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with, and continuance of such default or breach for a
period of 90 days after the date on which there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice
-16-
<PAGE>
in writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable. If an
Event of Default described in clause (d) or (g) (if the Event of Default under
clause (d) or (g), as the case may be, is with respect to all series of
Securities then Outstanding), (e) or (f) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and the to
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class), then outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been
-17-
<PAGE>
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
--------------------------------------------------------------
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as
-18-
<PAGE>
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are original
issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
securities of any series, 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 reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer or
such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and
-19-
<PAGE>
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the Trustee
-----------------------
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or yield to maturity,
without preference or priority of principal over interest or yield to
maturity, or of interest or yield to maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of
-20-
<PAGE>
such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or yield to
maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement; Proofs of Claim. In case an Event of
--------------------------------------
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Issuer, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other person performing similar functions, and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In case
---------------------------------------------------
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No holder of any
---------------------------------------
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been
-21-
<PAGE>
given to the Trustee pursuant to Section 4.9; it being understood and intended,
and being expressly covenanted by the taker and Holder of every Security with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of the
applicable series. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain
-----------------------------------------------------------
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
---------------------------------------------------------------
Default. Except as provided in Section 4.6, no right or remedy herein conferred
- ------
upon or reserved to the Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
--------------------------
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) 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 the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good
-22-
<PAGE>
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 5.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
-----------------------
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (g)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (g) which relates
to all series of Securities then Outstanding, or described in clause (e) or (f)
of Section 4.1, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Security affected as provided in Section 7.2. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of each series
affected shall be restored to their former positions and rights hereunder,
respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain
--------------------------------------------------------------
Circumstances. The Trustee shall give to the Securityholders of any series, as
- -------------
the names and addresses of such Holders appear on the registry books, notice by
mail of all defaults known to the Trustee which have occurred with respect to
such series, such notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, 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 or trustees and/or
Responsible Officers of the
-23-
<PAGE>
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs.
------------------------------------------------------------
All parties to this Indenture agree, and each Holder of any Security by his
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, suffered
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 of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (h) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) (if the suit relates
to all the Securities then Outstanding), (a), (f) or (g) of Section 4.1, 10% in
aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
----------------------
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default;
-----------------------------------------------------------
Prior to Default. With respect to the Holders of any series of Securities issued
- ----------------
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) 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.
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
(a) prior to the occurrence of an Event of Default with respect to the
securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the
-24-
<PAGE>
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
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) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) 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 pursuant to Section 4.9 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and subject to
-----------------------------
the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
-25-
<PAGE>
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) 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, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding; provided
-------- that, if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation reasonably requested by the
Holders as aforesaid shall be paid by the Issuer or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Issuer upon demand; and
(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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities
---------------------------------------------------------------
or Application of Proceeds Thereof. The recitals contained herein and in the
- ----------------------------------
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc. The
--------------------------------------------------------
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the
-26-
<PAGE>
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of Section
----------------------
9.8 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
---------------------------------------------------------
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
- -----
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor
trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss liability
or expense is due to the negligence or bad faith of the Trustee or such
predecessor trustee. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor trustee and to pay or
reimburse the Trustee and each predecessor trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds hold or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject
------------------------------------------------------
to Sections 5.1 and 5.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee for
-------------------------------------------
each series of Securities hereunder shall at all times be a corporation having a
combined capital
-27-
<PAGE>
and surplus of at least $50,000,000, and which is eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia 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.
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee. (a)
---------------------------------------------------------
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 4.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or by any
Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder
-28-
<PAGE>
of a Security or Securities of such series for at least six months may on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any successor
----------------------------------------------
trustee appointed as provided in Section 5.9 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 9.8, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
-29-
<PAGE>
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 5.9. If the Issuer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of
--------------------------------------------------------------
Trustee. Any corporation or national banking association into which the Trustee
- -------
may be merged or converted or with which it may be consolidated, or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or national banking association shall be eligible
under the provisions of Section 5.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
--------
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
------------------------------
SECTION 6.1 Evidence of Action Taken by Securityholders. Any request,
-------------------------------------------
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
-30-
<PAGE>
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities;
---------------------------------------------------------------------------
Record Date. Subject to Sections 5.1 and 5.2, the execution of any instrument by
- -----------
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.1, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only Holders of Securities of such
series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, the Trustee and
-------------------------------
any agent of the Issuer or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
-------------------------------------------------
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are 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 Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the above-
described persons; and, subject to Sections 5.1 and 5.2, the Trustee shall be
entitled to accept
-31-
<PAGE>
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to (but
-----------------------------------
not after) the evidencing to the Trustee, as provided in Section 6.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders. The
----------------------------------------------------------
Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convoy, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority
-32-
<PAGE>
in aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not adversely affect the interests of the Holders of the
Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders. With
-------------------------------------------------------
the consent (evidenced as provided in Article Six) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, 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 any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such --------
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 or the amount thereof provable in bankruptcy pursuant to
Section 4.2, or impair or affect the right of any Securityholder to institute
suit for the payment thereof or, if the Securities provide therefor, any
-33-
<PAGE>
right of repayment at the option of the Securityholder without the consent of
the Holder of each Security so affected, or (b) reduce the aforesaid percentage
of Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the Holders of each
Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of any
--------------------------------
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee, subject to the
--------------------------------
provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures.
-------------------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken at any
such meeting. If the Issuer or the Trustee shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be
-34-
<PAGE>
prepared by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. The Issuer
----------------------------------------------
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person, unless (i)
either the Issuer shall be the continuing corporation, or the successor
corporation or the Person which acquires by sale or conveyance substantially all
the assets of the Issuer (if other than the Issuer) shall expressly assume the
due and punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and agreements of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) the Issuer
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or agreement.
SECTION 8.2 Successor Corporation Substituted. In case of any such
---------------------------------
consolidation, merger, sale or conveyance in which the Issuer is not the
continuing corporation, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Issuer, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
-35-
<PAGE>
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject to the
-----------------------------
provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
----------------
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time (a) the
---------------------------------------
Issuer shall have paid or caused to be paid the principal of and interest on all
the Securities of any series outstanding hereunder (other than Securities of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all securities of any series theretofore authenticated (other
than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) or
(c) (i) all the securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or may, at the option of the
Issuer, be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (ii) the issuer shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the issuer in accordance with Section 9.8) or direct obligations
of the United States of America, backed by its full faith and credit, maturing
as to principal and interest in such amounts and at such times as will insure
the availability of cash sufficient to pay at maturity or upon redemption all
Securities of such series (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or prior
to such date of maturity as the case may be, and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange of securities of such
series, and the Issuer's right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
holders to receive payments of principal thereof and interest thereon upon the
original stated due dates therefor (but not upon acceleration) and remaining
rights of the holders to receive mandatory sinking fund payments, if any, in
each case solely out of property so deposited with the Trustee, and (iv) the
rights, obligations and immunities of the Trustee hereunder, and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
with respect to such series; provided, that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by then-
applicable mandatory rules or policies of any securities exchange upon which the
Securities are
-36-
<PAGE>
listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any, services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance.
-----------------------------------------------------------
In addition to discharge of the Indenture pursuant to Section 9.1, with respect
to any series of Securities where the exact amount of principal and interest due
on which can be determined at the time of making the deposit referred to in
Section 9.5(a), the Issuer may at its option by resolution of the Board of
Directors elect at any time either (a) to effect a defeasance (as defined in
Section 9.3) of the Securities of such series under Section 9.3 or (b) to effect
a covenant defeasance (as defined in Section 9.4) of the Securities of such
series under Section 9.4, in each case upon compliance with the applicable
conditions set forth below in this Article Nine.
SECTION 9.3 Defeasance and Discharge. Upon the Issuer's exercise of the
------------------------
option set forth in clause (a) of Section 9.2 with respect to the Securities of
a series, the issuer shall be deemed to have been discharged from its
obligations with respect to the Securities of such series on and after the date
the conditions precedent set forth in Section 9.5 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Issuer shall be
deemed to have paid and discharged the entire indebtedness represented by the
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for, (i) rights of
registration of transfer and exchange of Securities of such series, and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of holders to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and remaining rights of
the holders to receive mandatory sinking fund payments, if any, in each case
solely from the trust funds described in Section 9.5(a); and (iv) the rights,
obligations and immunities of the Trustee hereunder. Subject to compliance with
this Article Nine, the Issuer may exercise its option under this Section 9.3
notwithstanding the prior exercise of its option under Section 9.4 with respect
to the Securities of such series.
SECTION 9.4 Covenant Defeasance. Upon the Issuer's exercise of the option
-------------------
set forth in clause (b) of Section 9.2 with respect to the Securities of a
series, the Issuer shall be released from its obligations under Sections 3.9,
3.10 and 8.1 with respect to the Securities of such series on and after the date
the conditions precedent set forth in Section 9.5 are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Securities of such series, the Issuer may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 4.1,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
-37-
<PAGE>
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. The following
-----------------------------------------------
shall be the conditions precedent to the application of either Section 9.3 or
Section 9.4 to the Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) direct obligations of the United States of America, backed
by its full faith and credit, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment in
respect of the Securities of such series, money in an amount, or (iii) a
combination thereof, sufficient (without consideration of any reinvestment
of such money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (A) the
principal of and interest on all Securities of such series on each date
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such
series. Before such a deposit the Issuer may make arrangements satisfactory
to the Trustee for the redemption of the Securities of such series at a
future date or dates in accordance with Article Eleven, if applicable to
the Securities of such series, which shall be given effect in applying the
foregoing.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (i) on the date of such
deposit or (ii) insofar as Subsections 4.1(f) and 4.1(g) are concerned, at
any time during the period ending on the 121st day after the date of such
deposit or, if longer, ending on the date following the expiration of the
longest preference period applicable to the Issuer in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or (ii) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(d) Such defeasance or covenant defeasance will not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer is a party or by which it is
bound.
(e) If the Securities of such series are then listed on any national
securities exchange registered under the Securities Exchange Act of 1934,
as amended, the Issuer
-38-
<PAGE>
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the exercise of the option under Section 9.3 or 9.4, as the case may
be, will not cause such Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS a
general revenue ruling, or (iii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in each case to the
effect that, and based thereon such opinion shall confirm that, the holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Issuer in connection therewith pursuant to Section 2.3.
(i) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 9.3
or the covenant defeasance under Section 9.4 (as the case may be) have been
complied with.
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of
--------------------------------------------------------
Securities. Subject to Section 9.8, all moneys deposited with the Trustee
- ----------
pursuant to Section 9.1 or 9.5 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 9.7 Repayment of Moneys Held by Paying Agent. In connection with
----------------------------------------
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
-39-
<PAGE>
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for
---------------------------------------------------------------
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent
- ---------
for the payment of the principal of or interest on any Security of any series
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
SECTION 9.9 Indemnity for Direct Obligations of the United States. The
-----------------------------------------------------
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the money or the direct obligations of the United
States of America deposited pursuant to Section 9.1 or 9.5 or the principal or
interest received in respect of such obligations.
SECTION 9.10 Reinstatement. If the Trustee or the paying agent is unable to
-------------
apply any money or direct obligations of the United States of America in
accordance with Section 9.1 or 9.5 by reason of any legal proceedings or order
or judgment or any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine until such time as
the Trustee or paying agent is permitted to apply all such money in accordance
with this Article Nine; provided that, if the Issuer makes any payment of
principal of or interest on any such Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the holders of such
Securities to receive such payment from the money or direct obligations of the
United States of America held by the Trustee or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer
------------------------------------------------------------
Exempt from Individual Liability. No recourse under or upon any obligation,
- --------------------------------
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future shareholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the holders thereof and as
part of the consideration for, and as a condition of, the issue of the
Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and
----------------------------------------------------------
Securityholders. Nothing in this Indenture or in the Securities, expressed or
- --------------
implied, shall give
-40-
<PAGE>
or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities, any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture. All the
---------------------------------------------------
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and Securityholders.
-----------------------------------------------------------
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Securities
to or on the Issuer may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Vishay Intertechnology, Inc., 63 Lincoln Highway, Malvern, Pennsylvania 19355-
2120, Attention: Treasurer. Any notice, direction, request or demand by the
Issuer or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made and received at
the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to
-------------------------------------------------------------
Be Contained Therein. Upon any application or demand by the Issuer to the
- --------------------
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
-41-
<PAGE>
Each certificate (other than those provided for in Section 3.5 and
Section 11.5) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If the date
-----------------------------------------------
of maturity of interest on or principal of the Securities of any series or the
date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and affect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture
-----------------------------------------------------------
Act of 1939. If and to the extent that any provision of this Indenture limits,
- -----------
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "incorporated provision"), such incorporated provision shall control.
-42-
<PAGE>
SECTION 10.8 New York Law to Govern. This Indenture and each Security shall
----------------------
be deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State, without
regard to principles of the conflict of laws thereof.
SECTION 10.9 Counterparts. This Indenture may be executed in any number of
------------
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof. ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
------------------------------------------
SECTION 11.1 Applicability of Article. The provisions of this Article shall
------------------------
be applicable to the securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.3 for Securities of
such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
-----------------------------------------
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
-43-
<PAGE>
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 10 days
before the notice of redemption referred to in the first paragraph of this
Section 11.2 is first mailed to Holders, but no less than 45 days prior to the
date fixed for redemption, an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
-------------------------------------------
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date
-44-
<PAGE>
fixed for redemption at the rate of interest or Yield to Maturity (in the case
of an Original Issue Discount Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection
--------------------------------------------------------------
for Redemption. Securities shall be excluded from eligibility for selection for
- --------------
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Issuer and delivered to
the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. 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." The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.7, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
issuer intends to pay on
-45-
<PAGE>
or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such forty-fifth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity or (b) identified in an
officers' Certificate at least 60 days prior to the sinking fund payment date as
being beneficially owned by, and not pledged or hypothecated by, the Issuer or
an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments
not so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
-46-
<PAGE>
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 4.9
or the default cured on or before the forty-fifth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
-47-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of ________ __, 2000.
VISHAY INTERTECHNOLOGY, INC.
By:_________________________________
Name:
Title:
Attest:
By: _______________________
, as Trustee
By:_________________________________
Name:
Title:
Attest:
By: __________
-48-
<PAGE>
EXHIBIT 5.1
Kramer Levin Naftalis & Frankel LLP
919 THIRD AVENUE
NEW YORK, N.Y. 10022-3852
TEL (212) 715-9100 47, AVENUE HOCHE
FAX (212) 715-8000 75008 PARIS
FRANCE
April 6, 2000
Vishay Intertechnology, Inc.
63 Lincoln Highway
Malvern, PA 19355
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We are counsel to Vishay Intertechnology, Inc., a Delaware corporation (the
"Company"). We have acted as counsel to the Company in connection with the
preparation and filing of a Registration Statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, for the purpose of registering (i) unsecured
debt securities ("Debt Securities") consisting of debentures, notes and/or other
evidences of unsecured indebtedness in one or more series to be issued from time
to time pursuant to the terms of an Indenture, the form of which is filed as
Exhibit 4.1 to the Registration Statement (the "Indenture"), and (ii) shares of
common stock, par value $0.10 per share ("Common Stock") (the Debt Securities
and Common Stock are hereafter collectively referred to as "Securities"), or any
combination of the foregoing, at an aggregate initial offering price not to
exceed $600,000,000.
We have made such inquiries and reviewed such documents and records as we
have deemed necessary to enable us to express an opinion on the matters covered
hereby, and we have also examined and relied upon representations, statements or
certificates of public officials and officers and representatives of the
Company.
Based on the foregoing, and subject to the terms of the Securities being
otherwise in compliance with then applicable law and to any required action of
the Board of Directors of the Company being taken, it is our opinion that:
(i) when the Indenture is executed by the Company and the trustee
thereof and when the Debt Securities are issued in accordance with the
terms and conditions of the Indenture and as contemplated in the
Registration Statement and any amendments and
<PAGE>
Kramer Levin Naftalis & Frankel LLP
Vishay Intertechnology, Inc.
April 6, 2000
Page 2
prospectus supplements thereto, the Debt Securities will be legally issued
and constitute binding obligations of the Company; and
(ii) when issued or sold as contemplated in the Registration
Statement and any amendments and prospectus supplements thereto, the Common
Stock will be legally issued, fully paid and non-assessable.
We express no opinion with respect to the laws of any jurisdiction other
than the federal laws of the United States, the corporation laws of the State of
Delaware and the laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption "Legal
Matters" in the prospectus which forms a part thereof.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP
----------------------------------------
Kramer Levin Naftalis & Frankel LLP
-2-
<PAGE>
EXHIBIT 12
VISHAY INTERTECHNOLOGY, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in thousands)
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
________ ________ ________ _______ ________
Earnings:
<S> <C> <C> <C> <C> <C>
Income before minority interest $134,711 $42,646 $ 89,561 $70,846 $123,255
and income taxes
Fixed charges 61,290 57,384 22,331 20,979 33,406
Less equity in net income of 2,195 1,084 1,090 318 727
affiliate
________ ________ ________ _______ ________
Earnings, as adjusted $193,806 $98,946 $110,802 $91,507 $155,934
======== ======= ======== ======= ========
Fixed Charges:
Interest expense $ 53,296 $49,038 $ 18,819 $17,408 $ 29,433
Portion of rent expense 7,130 7,901 3,138 3,226 3,328
representative of interest
Amortization of deferred issue 864 445 374 345 645
costs
________ ________ ________ _______ ________
Total fixed charges $ 61,290 $57,384 $ 22,331 $20,979 $ 33,406
======== ======= ======== ======= ========
Ratio of earnings to fixed charges 3.16 1.72 4.96 4.36 4.67
======== ======= ======== ======= ========
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Vishay
Intertechnology, Inc. for the registration of $600 million of common stock or
debt securities and to the incorporation by reference therein of our report
dated February 2, 2000 (except for Note 17, as to which the date is March 21,
2000), with respect to the consolidated financial statements of Vishay
Intertechnology, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1999, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Philadelphia, Pennsylvania
April 3, 2000
