<PAGE> 1
As filed with the Securities and Exchange Commission on April 10, 1998
Registration No. 333-46807
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WALLACE COMPUTER SERVICES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 36-2515832
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
2275 Cabot Drive
Lisle, Illinois 60532
(630) 588-5000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Michael J. Halloran
Vice President, Chief Financial
Officer and Assistant Secretary
Wallace Computer Services, Inc.
2275 Cabot Drive
Lisle, Illinois 60532
(630) 588-5000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
<TABLE>
<S> <C> <C>
Steven L. Carson Frederick C. Lowinger
General Counsel and Assistant Secretary Steven Sutherland Marc D. Bassewitz
Wallace Computer Services, Inc. Sidley & Austin Latham & Watkins
2275 Cabot Drive One First National Plaza Sears Tower, Suite 5800
Lisle, Illinois 60532 Chicago, Illinois 60603 Chicago, Illinois 60606
(630) 588-5000 (312) 853-7000 (312) 876-7700
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|___________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
|_|___________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 10, 1998
PROSPECTUS
$300,000,000
[WALLACE COMPUTER SERVICES LOGO]
Wallace Computer Services, Inc.
Debt Securities
Preferred Stock
Common Stock
Wallace Computer Services, Inc., a Delaware corporation (the "Company"
or "Wallace"), may offer from time to time (i) unsecured debt securities ("Debt
Securities") consisting of debentures, notes and/or other unsecured evidences of
indebtedness in one or more series, (ii) shares of preferred stock, par value
$50.00 per share ("Preferred Stock"), in one or more series, or (iii) shares of
common stock, par value $1.00 per share ("Common Stock") (the Debt Securities,
Preferred Stock and Common Stock are collectively referred to as "Securities"),
or any combination of the foregoing, at an aggregate initial public offering
price not to exceed $300,000,000 (or the equivalent thereof if Debt Securities
are denominated in one or more foreign currencies or foreign currency units), at
prices and on terms to be determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement (as
supplemented by any applicable pricing supplement relating thereto, a
"Prospectus Supplement"), together with the terms of the offering of the
Securities, the initial public offering price and the net proceeds to the
Company from the sale thereof. The Prospectus Supplement will set forth, among
other matters, the following with respect to the particular Securities: (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking, subordination provisions, covenants, authorized denominations,
maturity, rate or method of calculation of interest and dates for payment
thereof, any conversion, redemption, prepayment or sinking fund provisions, the
currency, currencies or currency units in which principal, premium, if any, or
interest, if any, is payable and the initial offering price, (ii) in the case of
Preferred Stock, the designation, number of shares, liquidation preference,
initial public offering price, dividend rate (or method of calculation thereof),
dates on which dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions, any conversion or exchange
rights and (iii) in the case of Common Stock, the number of shares of Common
Stock and the terms of the offering and sale thereof.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
____________________
The Company may sell Securities directly to purchasers or through
agents designated from time to time by the Company or to or through underwriters
or a group of underwriters which may be managed by one or more underwriters. If
any agents of the Company or any underwriters are involved in the sale of
Securities in respect of which this Prospectus is being delivered, the names of
such agents or underwriters and any applicable commission or discount will be
set forth in the applicable Prospectus Supplement. The net proceeds to the
Company from the sale of Securities will be the initial public offering price of
such Securities less such discount, in the case of an offering through an
underwriter, or the purchase price of such Securities less such commission, in
the case of an offering through an agent, and less, in each case, other expenses
of the Company associated with the issuance and distribution of such Securities.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
____________________
The date of this Prospectus is , 1998.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Company has filed
with the Commission a registration statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities offered hereby. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all
information set forth in the Registration Statement and reference is hereby made
to the Registration Statement and the exhibits thereto for further information
with respect to the Company and the Securities offered hereby. Such reports,
proxy statements, Registration Statement and exhibits and other information
omitted from this Prospectus can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at its Northeast Regional Office located at 7 World
Trade Center, Suite 1300, New York, New York 10048 and Midwest Regional Office
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can be obtained at prescribed rates
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission at
(http://www.sec.gov). The Company files electronically with the Commission. The
Company's Common Stock is listed on the New York Stock Exchange, and such
reports, proxy statements and other information may also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of the Company on Form 10-K for the fiscal year ended
July 31, 1997 (as amended by the Form 10-K/A dated April __, 1998), the
Quarterly Report of the Company on Form 10-Q for the quarters ended October 31,
1997 and January 31, 1998, the Current Reports of the Company on Form 8-K dated
November 18, 1997 (as amended by the Form 8-K/A dated January 16, 1998 and the
Form 8-K/A dated April 9, 1998) and January 5, 1998 and the registration
statement of the Company on Form 8-A, dated March 14, 1990, are incorporated by
reference into this Prospectus. All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Securities
contemplated hereby shall be deemed to be incorporated by reference into this
Prospectus and to be made a part hereof from the respective dates of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein, in the accompanying Prospectus Supplement or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
Copies of the above documents (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge from the
Company, 2275 Cabot Drive, Lisle, Illinois 60532 (telephone number (630)
588-5395), Attention: Investor Relations.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the accompanying Prospectus Supplement include
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. All statements, other than statements
of historical facts, included in this Prospectus and the Prospectus Supplement
that address activities, events or developments that the Company expects or
anticipates will or may occur in the future, including such things as future
capital expenditures (including the amount and nature thereof), business
strategy and measures to implement strategy, competitive strengths, goals,
expansion and growth of the Company's and its subsidiaries' business and
operations, plans, references to future success and other such matters are
forward-looking statements. These statements are based on certain assumptions
and analyses made by the Company in light of
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its experience and its perception of historical trends, current conditions and
expected future developments as well as other factors it believes are
appropriate in the circumstances. However, whether actual results and
developments will conform with the Company's expectations and predictions is
subject to a number of risks and uncertainties, including the special
considerations discussed in this Prospectus and the Prospectus Supplement;
general economic, market or business conditions; the opportunities (or lack
thereof) that may be presented to and pursued by the Company and its
subsidiaries; competitive actions by other companies; changes in laws or
regulations; successful integration of acquisitions; labor market conditions and
raw material costs; and other factors, many of which are beyond the control of
the Company and its subsidiaries. Consequently, all of the forward- looking
statements made in this Prospectus and the Prospectus Supplement are qualified
by these cautionary statements, and there can be no assurance that the actual
results or developments anticipated by the Company will be realized or, even if
substantially realized, that they will have the expected consequences to or
effects on the Company and its subsidiaries or their business or operations.
____________________
The following trademarks and service marks of Wallace are mentioned in
this Prospectus or the Prospectus Supplement: "Wallace Information
Network(TM),""W.I.N.(TM)," "W.I.N. Direct(TM)," "@W.I.N. Direct(TM),"
"StatusNow!(TM)," "Select Services(R)" and "TOPS(R)."
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THE COMPANY
Wallace manufactures and distributes a wide range of consumable
business supplies and information management products, including paper and
electronic business forms, office supplies, labels, and commercial and
promotional printed materials. Wallace's strategy is to utilize information
management tools to offer its products and services through a solutions- based
approach aimed at reducing costs, increasing efficiencies and generating value
for its customers. Wallace's success has largely been attained through its focus
on developing and integrating new technologies into its products and services.
Management believes Wallace offers one of the broadest ranges of information
management products and services in the industry.
Over the past four years, Wallace has become recognized in the industry
as a leader in total print and integrated supply management. By combining forms,
print and office products management, Wallace serves as a single source for all
the business supplies used by large organizations. Central to Wallace's
integrated services is the Wallace Information Network ("W.I.N."), a
comprehensive forms management tool that ties customers into Wallace's corporate
information system and centrally organizes and manages a customer's data
regarding the manufacture, storage and distribution of printed materials and
consumable supplies. Since its introduction in 1993, the W.I.N. system has
become recognized in the industry as a benchmark. It continues to be one of the
few systems that can bring complete, current data about every order, shipment
and item in inventory to the customer's desktop for analysis and decision
making. As of December 31, 1997, more than 300 mid-to-large sized organizations
utilized W.I.N. as their central information tool in Wallace's integrated supply
management services.
WALLACE PRODUCTS AND SERVICES
Wallace's principal products and services include:
Business Forms. The Company provides stock and custom, paper and
electronic products for businesses, government agencies, and for healthcare,
not-for-profit and educational institutions. Examples of forms provided by the
Company include air freight package forms, monthly billing statements, mortgage
applications, healthcare forms, credit card statements and point-of-sale
transaction forms. Wallace's value-added services provide substantial benefits
to large, paper-intensive organizations which seek ways to increase efficiency
and reduce costs. Wallace's success is based on its long-term contract
commitments, diverse product offerings, unique services (such as W.I.N.) and
extensive distribution network.
Promotional Printing. Through its COLORFORMS division, the Company
produces materials that serve the targeted marketing and direct response
markets. Typical products include sweepstakes mailings, credit card offers and
on-demand, individual mailings. The Company provides a full-service, quick
response, value-added resource to its customers, and supplies national coverage
and state-of-the-art imaging capabilities and service options, which are
designed to increase promotion response rates and reduce customer costs.
Commercial Printing. The Company's commercial printing business
primarily consists of high-color, high-quality commercial printing and catalogs
and directories. Typical products include corporate image materials, promotional
literature, product brochures, product documentation literature, retail
point-of-sale materials and health care plan directories. By acquiring Post
Printing Company in the fall of 1996, Moran Printing Company in the summer of
1997 and Graphic Industries, Inc. ("Graphic") in late 1997, Wallace has
significantly expanded its commercial printing capabilities. Wallace's focus is
on fulfilling the total print requirements of its targeted customer base, the
Fortune 1000. The Company differentiates itself from competitors in the printing
industry by utilizing its W.I.N. system capabilities and distribution expertise
to provide a fully integrated service for customers.
Office Products. The Company manufactures office products such as legal
pads, computer paper, ink jet printer cartridges, ribbons and ATM and cash
register paper rolls. Wallace also offers an extensive selection of brand-name
and discount brand office supplies and standardized business forms for the home,
school and office markets. Through an arrangement with United Stationers,
Wallace acts as a contract stationer to customers, enabling the Company to serve
as a full source supplier of office products. Wallace can supply approximately
23,000 office and computer supplies to its customers and can provide nationwide
delivery on a next-day basis. Wallace recently entered into a joint marketing
arrangement with Boise Cascade Office Products whereby each company will
introduce the other company to its top 200 customers and allow such company to
market
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its products and services to those customers. Wallace's TOPS group manufactures
and sells pad products and stock forms to office products retailers and
wholesalers.
Labels. Wallace is one of the only national suppliers with a full range
of label options and integrated services. The Company produces bar-coded
shipping labels, consumer product labels, airline bag tags, blank stock labels,
electronic article surveillance tags and labeling software, printers and
applicators. Wallace produces both electronic data processing ("EDP") labels and
prime labels. EDP labels usually include some package specific information, such
as bar coding, and are designed to meet the needs of key market segments,
including retail, health care, small package delivery, manufacturing and
required regulatory compliance. Prime labels are high quality promotional and
product identification labels used on items such as shampoo bottles and food
packages.
RECENT DEVELOPMENTS
On December 22, 1997, Wallace completed its acquisition of all of the
equity of Graphic for an aggregate price of approximately $315 million. To
finance the acquisition and to refinance $142 million in outstanding debt of
Graphic, Wallace borrowed $437 million under its $500 million senior unsecured
credit facility. Graphic, headquartered in Atlanta, Georgia, is the largest
sheet-fed commercial printer in the United States (based on number of sheet-fed
presses) and manufactures such products as high color marketing literature,
annual reports and point-of-sale material, primarily for corporate customers.
Graphic will provide Wallace with critical mass in commercial printing, which
will allow Wallace to expand its product offerings and geographic coverage.
Management expects to continue to service Graphic's established customer base
and has begun to offer Graphic's capabilities to Wallace's large, national
customers. Management also intends to offer Wallace's products and services to
Graphic's existing customer base.
The Company is incorporated in Delaware. Its executive offices are
located at 2275 Cabot Drive, Lisle, Illinois 60532 (telephone number (630)
588-5000).
USE OF PROCEEDS
Except as set forth in the Prospectus Supplement for a specific
offering of Securities, the net proceeds from the sale of the Securities will be
applied by the Company for general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges
for the Company and its consolidated subsidiaries for the periods indicated. The
Company to date has not issued Preferred Stock; therefore, the ratios of
earnings to combined fixed charges and preferred stock dividends are the same as
the ratios of earnings to fixed charges set forth below.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED JULY 31, JANUARY 31,
----------------------------------------------- ----------------
1997 1996 1995 1994 1993 1998 1997
---- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges . . . . . . . 26.2 31.2 23.4 22.2 20.2 8.0 29.7
</TABLE>
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The computation of the ratio of earnings to fixed charges is based on
applicable amounts of the Company and its consolidated subsidiaries. "Earnings"
consist of income before income taxes and fixed charges. "Fixed charges" consist
of interest on indebtedness, amortization of debt discount and expense and an
estimated amount of rental expense that is deemed to be representative of the
interest factor.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby are to be issued under an indenture
(the "Indenture") to be executed by the Company and The Bank of New York, as
trustee (the "Trustee"). A copy of the form of Indenture has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
Section references used in this Prospectus refer to sections of the Indenture.
The following statements relating to the Debt Securities and the
Indenture are summaries and do not purport to be complete, and are subject to
and are qualified in their entirety by reference to all the provisions of the
Indenture. Certain other specific terms of any series of Debt Securities will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of the Debt Securities described in a Prospectus Supplement
differ from any of the terms described herein, then such terms described herein
shall be deemed to have been superseded by such Prospectus Supplement.
GENERAL
The terms of each series of Debt Securities will be established by or
pursuant to a resolution of the Board of Directors of the Company and set forth
or determined in the manner provided in an officer's certificate or by a
supplemental indenture. (Indenture Section 2.2) The particular terms of each
series of Debt Securities will be described in a Prospectus Supplement relating
to such series (including any pricing supplement thereto).
The Debt Securities that may be offered under the Indenture are not
limited in aggregate principal amount. The Debt Securities may be issued in one
or more series with the same or various maturities, at par, at a premium, or at
a discount. The applicable Prospectus Supplement (including any pricing
supplement thereto) will set forth the initial offering price, the aggregate
principal amount and the following terms of the Debt Securities in respect of
which this Prospectus is delivered: (1) the title of such Debt Securities; (2)
any subordination provisions pertaining to such Debt Securities; (3) the price
or prices (expressed as a percentage of the principal amount thereof) at which
the Debt Securities will be issued; (4) any limit on the aggregate principal
amount of such Debt Securities; (5) the date or dates on which principal on such
Debt Securities will be payable; (6) the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate or
rates (including any commodity, commodity index, stock exchange index or
financial index) at which such Debt Securities will bear interest, if any, the
date or dates from which such interest, if any, will accrue, the date or dates
on which such interest, if any, will commence and be payable and any regular
record date for the interest payable on any interest payment date; (7) the place
or places where principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable; (8) the period or periods within which, the
price or prices at which and the terms and conditions upon which the Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase the Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof; (10) the dates, if any, on which and the price or prices at
which the Debt Securities will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations; (11) the denominations in which such Debt Securities may be
issuable, if other than denominations of $1,000 and any integral multiple
thereof; (12) whether the Debt Securities are to be issuable in the form of
Certificated Debt Securities (as defined below) or Global Debt Securities (as
defined below); (13) the portion of principal amount of such Debt Securities
that shall be payable upon declaration of acceleration of the maturity date
thereof, if other than the principal amount thereof; (14) the currency of
denomination of such Debt Securities; (15) the designation of the currency,
currencies or currency units in which payment of principal of, premium, if any,
and interest, if any, on such Debt Securities will be made; (16) if payments of
principal of, premium, if any, or interest, if any, on the Debt Securities are
to be made in one or more currencies or currency units other than that or those
in which such Debt Securities are denominated, the manner in which the exchange
rate with respect to such payments will be determined; (17) the manner in which
the amounts of payment of principal of, premium, if any, or interest, if any, on
such Debt Securities will be determined, if such amounts may be determined by
reference to an index based on a currency or currencies other than that in which
the Debt
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Securities are denominated or designated to be payable or by reference to a
commodity, commodity index, stock exchange index or financial index; (18) the
provisions, if any, relating to any security provided for such Debt Securities;
(19) any addition to or change in the Events of Default described herein or in
the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect to
such Debt Securities; (20) any addition to or change in the covenants described
in the Indenture with respect to such Debt Securities; (21) any other terms of
such Debt Securities, which may modify or delete any provision of the Indenture
insofar as it applies to such series; and (22) any depositories, interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to the Debt Securities. (Indenture Section 2.2).
Debt Securities may be issued that provide for an amount less than the
stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to the terms of the Indenture
("Discount Securities"). Federal income tax considerations and other special
considerations applicable to any such Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of, premium, if any, or interest, if any, on any series of Debt
Securities is payable in a foreign currency or currencies or a foreign currency
unit or units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency or currencies or foreign currency unit or units will be
set forth in the applicable Prospectus Supplement.
TRANSFER AND EXCHANGE
Each Debt Security will be represented by either one or more global
securities (a "Global Debt Security") registered in the name of The Depository
Trust Company, as depository (the "Depository"), or a nominee of the Depository
(each such Debt Security represented by a Global Debt Security being herein
referred to as a "Book-Entry Debt Security"), or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth under "--Global Debt
Securities and Book-Entry System" below, Book-Entry Debt Securities will not be
issuable in certificated form. The information in this section concerning the
Depository and its book-entry system and procedures has been obtained from
sources the Company believes to be reliable, but the Company takes no
responsibility for the accuracy of the information in this section.
Certificated Debt Securities. Certificated Debt Securities may be
transferred or exchanged at the Trustee's office or paying agencies in
accordance with the terms of the Indenture. No service charge will be made for
any transfer or exchange of Certificated Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The transfer of Certificated Debt Securities and the right to receive
the principal of, premium, if any, and interest, if any, on such Certificated
Debt Securities may be effected only by surrender of the certificate
representing such Certificated Debt Securities and either reissuance by the
Company or the Trustee of such certificate to the new Holder or the issuance by
the Company or the Trustee of a new certificate to the new Holder.
Global Debt Securities and Book-Entry System. Each Global Debt Security
representing Book-Entry Debt Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository or a nominee of the
Depository. Except as set forth below, Book-Entry Debt Securities will not be
exchangeable for Certificated Debt Securities and will not otherwise be issuable
as Certificated Debt Securities.
The Depository is a limited purpose trust company organized under the
laws of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. The Depository was created to hold securities for its
participating organizations ("participants") and facilitate the clearance and
settlement of securities transactions between participants through electronic
book-entry changes in accounts of its participants, thereby eliminating the need
for physical movements of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing
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corporations, and may include certain other organizations. Indirect access to
the Depository's system is also available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The procedures
that the Depository has indicated it intends to follow with respect to
Book-Entry Debt Securities are set forth below.
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to participants or persons that may hold interests through participants.
Upon the issuance of a Global Debt Security, the Depository will credit, on its
book-entry registration and transfer system, the participants' accounts with the
respective principal amounts of the Book-Entry Debt Securities represented by
such Global Debt Security beneficially owned by such participants. The accounts
to be credited shall be designated by participants participating in the
distribution of such Book-Entry Debt Securities. Ownership of Book-Entry Debt
Securities will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depository for the related
Global Debt Security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to own, transfer or pledge beneficial interests in
Book-Entry Debt Securities.
So long as the Depository for a Global Debt Security, or its nominee,
is the registered owner of such Global Debt Security, the Depository or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
Book-Entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or Holders thereof under the Indenture.
Accordingly, each person beneficially owning Book-Entry Debt Securities must
rely on the procedures of the Depository for the related Global Debt Security
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a Holder
under the Indenture.
The Company understands, however, that under existing industry
practice, the Depository will authorize the persons on whose behalf it holds a
Global Debt Security to exercise certain rights of Holders of Debt Securities,
and the Indenture provides that the Company, the Trustee and their respective
agents will treat as the Holder of a Debt Security the persons specified in a
written statement of the Depository with respect to such Global Debt Security
for purposes of obtaining any consents or directions required to be given by
Holders of the Debt Securities pursuant to the Indenture. (Indenture Section
2.14.6)
Payments of principal of, premium, if any, and interest, if any, on
Book-Entry Debt Securities will be made to the Depository or its nominee, as the
case may be, as the registered Holder of the related Global Debt Security.
(Indenture Section 2.14.5) None of the Company, the Trustee or any other agent
of the Company or agent of the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in such Global Debt Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. However, the Trustee may maintain physical possession of such Global
Debt Security on behalf of the Depository or its nominee pursuant to an
agreement between the Trustee and the Depository.
If the Depository is at any time unwilling or unable to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depository registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
Certificated Debt Securities in exchange for each Global Debt Security. In
addition, the Company may at any time and in its sole discretion determine not
to have the Book-Entry Debt Securities of any series represented by one or more
Global Debt Securities and, in such event, will issue Certificated Debt
Securities in exchange for the Global Debt Securities of such series. Global
Debt Securities will also be exchangeable by the Holders for Certificated Debt
Securities if an Event of Default with respect to the Book-Entry Debt Securities
represented by such Global Debt Securities has occurred and is continuing. Any
Certificated Debt Securities issued in exchange for a Global Debt Security will
be registered in such name or names as the Depository shall instruct the
Trustee. It is expected that such instructions will be based upon directions
received by the Depository from participants with respect to ownership of
Book-Entry Debt Securities relating to such Global Debt Security.
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NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless otherwise set forth in the applicable Prospectus Supplement, the
Debt Securities will not contain any provisions which may afford Holders of the
Debt Securities protection in the event of a change in control of the Company or
in the event of a highly leveraged transaction (whether or not such transaction
results in a change in control of the Company) which could adversely affect
Holders of Debt Securities.
COVENANTS
The applicable Prospectus Supplement will set forth any restrictive
covenants applicable with respect to any issue of Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
Person (a "successor Person") unless (i) the Company is the surviving
corporation or the successor Person (if other than the Company) is a
corporation, partnership, trust or other entity organized and existing under the
laws of any United States domestic jurisdiction and expressly assumes the
Company's obligations on the Debt Securities and under the Indenture, (ii)
immediately after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event of
Default shall have occurred and be continuing under the Indenture and (iii)
certain other conditions are met. (Indenture Section 5.1)
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with
respect to Debt Securities of any series: (a) default in the payment of any
interest on any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire
amount of such payment is deposited by the Company with the Trustee or with a
paying agent prior to the expiration of such period of 30 days); (b) default in
the payment of principal of or premium, if any, on any Debt Security of that
series when due and payable; (c) default in the deposit of any sinking fund
payment, when and as due in respect of any Debt Security of that series; (d)
default in the performance or breach of any other covenant or warranty of the
Company in the Indenture (other than a covenant or warranty that has been
included in the Indenture solely for the benefit of a series of Debt Securities
other than that series), which default continues uncured for a period of 60 days
after written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than a majority in principal amount of the
outstanding Debt Securities of that series as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization with respect to the
Company; and (f) any other Event of Default provided with respect to Debt
Securities of that series that is described in the applicable Prospectus
Supplement. No Event of Default with respect to a particular series of Debt
Securities (except as to certain events of bankruptcy, insolvency or
reorganization with respect to the Company) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. (Indenture Section
6.1). The occurrence of an Event of Default may constitute an event of default
under the Company's credit agreements in existence from time to time. In
addition, the occurrence of certain Events of Default or an acceleration under
the Indenture may constitute an event of default under certain other
indebtedness of the Company outstanding from time to time.
Unless otherwise specified in the applicable Prospectus Supplement, if
an Event of Default with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than a majority in principal amount of the outstanding Debt
Securities of that series may, by a notice in writing to the Company (and to the
Trustee if given by the Holders), declare to be due and payable immediately the
principal amount (or, if the Debt Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued and unpaid interest, if any, on all Debt
Securities of that series. In the case of an Event of Default resulting from
certain events of bankruptcy, insolvency or reorganization, the principal amount
(or such specified amount) of and accrued and unpaid interest, if any, on all
outstanding Debt Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of outstanding Debt Securities. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of a majority in principal amount of the outstanding
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Debt Securities of that series may rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal and
interest, if any, with respect to Debt Securities of that series, have been
cured or waived as provided in the Indenture. (Indenture Section 6.2) For
information as to waiver of defaults see the discussion set forth below under
"--Modification and Waiver." Reference is made to the applicable Prospectus
Supplement (i) relating to any series of Debt Securities that are Discount
Securities for the particular provisions relating to acceleration of a portion
of the principal amount of such Discount Securities upon the occurrence of an
Event of Default, or (ii) relating to any series of Debt Securities that are
designated as subordinated debt for the particular provisions relating to
acceleration of a portion of the principal amount of such subordinated Debt
Securities upon the occurrence of an Event of Default.
The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of outstanding Debt Securities, unless the Trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Indenture Section
7.1(e)) Subject to certain rights of the Trustee, the Holders of a majority in
principal amount of the outstanding Debt Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of that series. (Indenture
Section 6.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the Indenture,
or for the appointment of a receiver or trustee, or for any remedy under the
Indenture, unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to Debt Securities of that
series and unless also the Holders of not less than a majority in principal
amount of the outstanding Debt Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the outstanding Debt Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Indenture Section 6.7)
Notwithstanding the foregoing, the Holder of any Debt Security will have an
absolute and unconditional right to receive payment of the principal of,
premium, if any, and any interest on such Debt Security on or after the due
dates expressed in such Debt Security and to institute suit for the enforcement
of any such payment. (Indenture Section 6.8)
The Indenture requires the Company, within 90 days after the end of
each of its fiscal years, to furnish to the Trustee a statement as to compliance
with the Indenture. (Indenture Section 4.3) The Indenture provides that the
Trustee may withhold notice to the Holders of Debt Securities of any series of
any Default or Event of Default (except in payment on any Debt Securities of
such series) with respect to Debt Securities of such series if it in good faith
determines that withholding such notice is in the interest of the Holders of
such Debt Securities. (Indenture Section 7.5)
MODIFICATION AND WAIVER
The Indenture provides that modifications to, and amendments of, the
Indenture or any series of Debt Securities issued thereunder may be made by the
Company and the Trustee without the consent of the Holders for the following
purposes: (i) to cure any ambiguity, omission, defect or inconsistency; (ii) to
comply with Article V (which governs the Company's ability to merge or
consolidate with, and to be replaced by, a successor corporation); (iii) to
provide for uncertificated Debt Securities in addition to or in place of
certificated Debt Securities; (iv) to make any change that does not adversely
affect the rights of any Holder; (v) to provide for the issuance of and
establish the form and terms and conditions of Debt Securities of any series as
permitted by the Indenture; (vi) to evidence and provide for the acceptance of
appointment under the Indenture by a successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts under the Indenture by more than one Trustee; or
(vii) to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act of
1939, as amended. (Indenture Section 9.1)
Other modifications to, and amendments of, the Indenture or any series
of Debt Securities issued thereunder may be made by the Company and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the outstanding Debt Securities of each series affected by such modifications or
amendments. However, no such modification or amendment may, without the consent
of the Holder of each outstanding Debt Security affected thereby: (a) change the
amount of Debt Securities whose Holders must consent to an amendment, supplement
or waiver; (b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Debt Security; (c) reduce the principal of
or premium, if any, on, or change
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the fixed maturity of, any Debt Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous obligation with
respect to any series of Debt Securities; (d) reduce the principal amount of
Discount Securities payable upon acceleration of the maturity thereof; (e) waive
a default in the payment of the principal of, premium, if any, or interest, if
any, on any Debt Security (except a rescission of acceleration of the Debt
Securities of any series by the Holders of at least a majority in aggregate
principal amount of the then outstanding Debt Securities of such series and a
waiver of the payment default that resulted from such acceleration); (f) make
the principal of, or premium, if any, or interest, if any, on any Debt Security
payable in currency other than that stated in the Debt Security; (g) make any
change to certain provisions of the Indenture relating to, among other things,
the right of Holders of Debt Securities to receive payment of the principal of,
premium, if any, and interest, if any, on such Debt Securities and to institute
suit for the enforcement of any such payment and to waivers or amendments; or
(h) waive a redemption payment with respect to any Debt Security or change any
of the provisions with respect to the redemption of any Debt Security.
(Indenture Section 9.3)
The Holders of at least a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with provisions of the Indenture other than certain
specified provisions. (Indenture Section 9.2) The Holders of not less than a
majority in principal amount of the outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series waive any
past default under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal of, premium, if
any, or interest, if any, on any Debt Security of that series or in respect of a
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Debt Security of such series affected (except
that the Holders of a majority in principal amount of the outstanding Debt
Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
(Indenture Section 6.13)
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
Satisfaction and Discharge of Indenture. The Indenture provides that,
upon satisfaction by the Company of certain conditions, the terms of the
Indenture will cease to be of further effect (except for certain obligations to
register the transfer or exchange of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies, to compensate and
indemnify the Trustee and certain provisions relating to the treatment of funds
held by paying agents) in the event that either (i) all Debt Securities
theretofore authenticated and delivered under the Indenture (other than Debt
Securities that have been destroyed, lost or stolen and that have been replaced
or paid) have been delivered to the Trustee for cancellation; or (ii) all Debt
Securities issued under the Indenture not theretofore delivered to the Trustee
for cancellation (a) have become due and payable, (b) will become due and
payable at their stated maturity within one year, (c) are to be called for
redemption within one year under arrangements satisfactory to the Trustee, at
the expense of the Company, or (d) are deemed paid and discharged pursuant to
the provisions of the Indenture described under "--Legal Defeasance," below. The
Company must, in order to be discharged from its obligations under the Indenture
as a result of events described in the preceding sentence, (1) deposit or cause
to be deposited with the Trustee trust funds in an amount sufficient for the
purpose of paying and discharging the entire indebtedness on such Debt
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Debt
Securities which have become due and payable on or prior to the date of such
deposit) or to the stated maturity or redemption date, as the case may be; (2)
have paid or caused to be paid all other sums payable by the Company under the
Indenture; and (3) delivered to the Trustee an officer's certificate and an
opinion of counsel, each stating that all conditions precedent provided for in
the Indenture relating to the satisfaction and discharge of the Indenture have
been complied with.
(Indenture Section 8.1)
Legal Defeasance. The Indenture provides that, unless otherwise
provided by the terms of the applicable series of Debt Securities, the Company
may be discharged from any and all obligations in respect of the Debt Securities
of any series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal, premium, if any, and interest, if any,
on and any mandatory sinking fund payments in respect of the Debt Securities
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of such series on the stated maturity of such payments in accordance with the
terms of the Indenture and such Debt Securities. Such discharge may occur only
if, among other things, the Company shall have delivered to the Trustee an
opinion of counsel stating that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling or, since the
date of execution of the Indenture, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred. (Indenture Section
8.3)
Defeasance of Certain Covenants. The Indenture provides that, unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, (i) the Company may omit to comply with
the covenants described above under "--Consolidation, Merger and Sale of Assets"
and certain other covenants set forth in the Indenture and any other covenants
applicable to such Debt Securities, as well as any additional covenants which
may be set forth in the applicable Prospectus Supplement, and (ii) any omission
to comply with such covenants will not constitute a Default or an Event of
Default with respect to, and certain Events of Default will be inapplicable to,
the Debt Securities of such series ("covenant defeasance"). The conditions
include: the deposit with the Trustee of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal of, premium, if any, and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities; and the delivery to
the Trustee of an opinion of counsel to the effect that the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit and related
covenant defeasance and will be subject to United States federal income tax on
the same amounts and in the same manner and at the same times as would have been
the case if such deposit and related covenant defeasance had not occurred.
(Indenture Section 8.4)
Covenant Defeasance and Events of Default. In the event the Company
exercises its option to effect covenant defeasance with respect to any series of
Debt Securities and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and/or United States Government Obligations or Foreign Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
"Foreign Government Obligations" means, with respect to Debt Securities
of any series that are denominated in a currency other than United States
Dollars, (i) direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by or
acting as an agency or instrumentality of such government the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by
such government, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the internal laws of the State of New York.
(Indenture Section 10.10)
DESCRIPTION OF PREFERRED STOCK
Under the Company's Restated Certificate of Incorporation, as amended
("Certificate of Incorporation"), the Company may issue, in one or more classes
or series, up to 500,000 shares of its Preferred Stock, with such powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions as shall
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be designated in resolutions adopted by the Board of Directors or a duly
authorized committee thereof. No shares of Preferred Stock are currently
outstanding, but 250,000 shares of Preferred Stock are reserved for issuance in
connection with the Series A Rights described under "Description of Common
Stock--Certain Provisions of the Certificate of Incorporation, By-laws and
Rights Agreement." The Preferred Stock, if and when issued, will be fully paid
and nonassessable and holders thereof will have no preemptive rights.
The specific terms of any Preferred Stock being offered (the "Offered
Preferred Stock") will be described in the Prospectus Supplement relating to
such Offered Preferred Stock. The following summaries of certain provisions of
the Preferred Stock are subject to, and are qualified in their entirety by
reference to, the Certificate of Incorporation and the Certificate of
Designation relating to the particular class or series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the Offered Preferred
Stock offered thereby for specific terms, including:
(1) The designation of such Offered Preferred Stock.
(2) The number of shares of such Offered Preferred Stock offered, the
liquidation preference per share and the initial offering price of such
Offered Preferred Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Offered Preferred Stock.
(4) The date from which dividends on such Offered Preferred Stock shall
accumulate, if applicable.
(5) The procedures for any auction and remarketing, if any, of such Offered
Preferred Stock.
(6) The provision of a sinking fund, if any, for such Offered Preferred
Stock.
(7) The provision for redemption, if applicable, of such Offered Preferred
Stock.
(8) Any listing of such Offered Preferred Stock on any securities exchange.
(9) The terms and conditions, if applicable, upon which such Offered
Preferred Stock will be convertible into or exchangeable for Common
Stock, and whether at the option of the holder thereof or the Company.
(10) Whether such Offered Preferred Stock will rank senior or junior to or
on a parity with any other class or series of Offered Preferred Stock.
(11) The voting rights, if any, of such Offered Preferred Stock.
(12) Any other specific terms, preferences, rights, limitations or
restrictions of such Offered Preferred Stock.
(13) A discussion of Federal income tax considerations applicable to such
Offered Preferred Stock.
Subject to the Certificate of Incorporation and to any limitations
contained in then outstanding Preferred Stock, the Company may issue additional
classes or series of Preferred Stock, at any time or from time to time, with
such powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, as the Board of
Directors or any duly authorized committee thereof shall determine, all without
further action of the stockholders, including holders of then outstanding
Preferred Stock, of the Company.
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DESCRIPTION OF COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of
100,000,000 shares of Common Stock, par value $1.00 per share. As of January 31,
1998, there were approximately 43,409,000 shares of Common Stock outstanding.
The outstanding shares of Common Stock are validly issued, fully paid and
non-assessable, and the shares of Common Stock offered pursuant to this
Prospectus and a related Prospectus Supplement, when issued and sold as
contemplated herein and therein, will be validly issued, fully paid and
non-assessable.
The following summary description of the Common Stock of the Company
does not purport to be complete and is qualified in its entirety by reference to
the Company's Certificate of Incorporation, and to Delaware corporate law.
GENERAL
Holders of Common Stock are entitled to one vote for each share held on
all matters submitted to a vote of stockholders and do not have cumulative
voting rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors out of
funds legally available therefor, subject to any preferential dividend rights of
outstanding Preferred Stock and certain covenants contained in documents
governing debt of the Company which may limit the Company's ability to declare
or pay dividends. Upon the liquidation, dissolution or winding up of the
Company, the holders of Common Stock are entitled to receive ratably the net
assets of the Company available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding Preferred Stock.
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights. The rights, preferences and privileges of holders of Common
Stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of Preferred Stock which the Company may
designate and issue in the future.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION, BY-LAWS AND RIGHTS
AGREEMENT
Certain provisions of the Certificate of Incorporation and By-laws of
the Company and the Rights Agreement dated as of March 14, 1990 (the "Rights
Agreement") between the Company and Harris Trust and Savings Bank, as Rights
Agent, summarized below may be deemed to have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that a stockholder
might consider in its best interest, including those attempts that might result
in a premium over the market price for the shares held by stockholders.
The Certificate of Incorporation or By-laws provide generally (i) that
there shall be three classes of directors serving staggered terms; (ii) that
directors can be removed from office only by the affirmative vote of the holders
of at least 80% of the combined voting power of the then outstanding shares of
stock entitled to vote generally in an election of directors, voting together as
a single class; (iii) that vacancies on the Board of Directors may be filled
only by the remaining directors and not by the stockholders; (iv) that the Board
of Directors may adopt, amend or repeal the By-laws of the Company; and (v) for
an advance notice procedure for the nomination, other than by or at the
direction of the Board of Directors, of candidates for election as directors at
annual meetings of stockholders. In general, notice of intent to nominate a
director at an annual meeting must be received by the Company not less than 90
days prior to the annual meeting and must contain certain information concerning
the person to be nominated and the stockholder submitting the proposal. The
Certificate of Incorporation also provides that any action required or permitted
to be taken by the stockholders of the Company may be effected only at an annual
or special meeting of stockholders, and stockholder action by written consent in
lieu of a meeting is prohibited. The affirmative vote of the holders of at least
80 percent of the combined voting power of the then outstanding shares of stock
of the Company entitled to vote generally in the election of directors, voting
together as a single class, is required to alter, amend or repeal, or adopt any
provision inconsistent with, this provision. In addition, special meetings of
stockholders may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors.
Article Ninth of the Certificate of Incorporation of the Company
provides that any merger or other business combination between the Company and
an interested stockholder (a holder of at least 20% of the outstanding Common
Stock) must be approved by the holders of 80% of the outstanding shares of
Common Stock unless the price paid for shares of Common Stock in the merger or
business combination equals or exceeds the higher of (a) the highest price paid
by the interested stockholder for
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any of its shares of Common Stock, (b) the fair market value of the shares of
Common Stock prior to the first public announcement of the merger or business
combination and (c) the fair market value of the shares of Common Stock on the
date the interested stockholder became an interested stockholder. The merger or
business combination must also meet certain form of consideration and procedural
requirements. The 80% requirement is not applicable if the merger or business
combination is approved by the disinterested directors of the Company.
Each share of Common Stock has associated with it one preferred share
purchase right (the "Series A Right") permitting the holder to purchase one
two-hundredth of a share of the Company's Series A Preferred Stock at an
exercise price of $115 per share, subject to certain adjustments. The terms of
the Series A Rights are set forth in the Rights Agreement. The Series A Rights
are not exercisable and are transferable only with the related Common Stock
certificates. The Series A Rights become exercisable and separately transferable
ten days following a public announcement that a person or group of affiliated or
associated persons has become the beneficial owner of 20% or more of the
outstanding shares of Common Stock or, if earlier, ten business days (or such
other day as the Board of Directors of the Company may determine) following the
commencement of a tender or exchange offer that would result in a person or
group becoming the beneficial owner of 20% or more of the outstanding shares of
Common Stock. Thereafter, the Series A Rights will trade separately from the
Common Stock. After the Series A Rights become exercisable, if (i) a person
becomes the beneficial owner of 20% or more of the then outstanding shares of
Common Stock, or (ii) the Company is the surviving corporation in a merger or
other business combination with the acquiring person, an acquiring person
engages in one or more self-dealing transactions involving the Company or a
reclassification of stock or other transaction occurs that results in the
increase of 1% or more in the percentage of any class of equity securities of
the Company that is owned by any acquiring person, each holder of a Right (other
than the acquiring person or group) will have the right to receive, upon
exercise of such Right, shares of Common Stock, or, in certain circumstances,
cash, property or other securities with a value equal to two times the Series A
Right's then-current exercise price. In addition, after the acquisition of 20%
or more of the outstanding shares of Common Stock by an acquiring person or
group, in the event that (i) the Company is acquired in a merger or other
business combination, or (ii) 50% or more of the assets or earnings power of the
Company is sold or otherwise transferred, each holder of a Right (other than the
acquiring person or group) will have the right to receive, upon exercise of such
Right, shares of common stock of the acquirer then having a current market value
equal to two times the Series A Right's then-current exercise price. At any time
after the acquisition by a person or group of beneficial ownership of 20% or
more of the outstanding shares of Common Stock of the Company and before the
acquisition by a person or group of beneficial ownership of 50% or more of the
outstanding shares of Common Stock of the Company, the Board of Directors may
exchange the Series A Rights (other than the Series A Rights of such person or
group which have become void), in whole or in part, at an exchange ratio of one
share of Common Stock per Series A Right, subject to adjustment. Under certain
circumstances, the Series A Rights may be redeemed at a price of $.01 per Series
A Right. The Series A Rights will expire on March 31, 2000, unless earlier
redeemed by the Company. The Rights Agreement generally provides that a Series A
Right will be issued in connection with each share of Common Stock (i) issued
prior to the earliest of the Distribution Date (as defined in the Rights
Agreement) or the redemption, exchange or expiration of the Series A Rights or
(ii) issued at certain other times pursuant to certain options, warrants or
convertible securities.
The foregoing summary is qualified in its entirety by reference to the
provisions of the Certificate of Incorporation, Bylaws and Rights Agreement.
STATUTORY PROVISIONS
The Company is subject to Section 203 of the Delaware General
Corporation Law ("DGCL"). Section 203 of the DGCL prohibits certain transactions
between a Delaware corporation and an "interested stockholder," which is defined
as a person who, together with any affiliates and/or associates of such person,
beneficially owns, directly or indirectly, 15 percent or more of the outstanding
voting shares of a Delaware corporation. This provision prohibits certain
business combinations (defined broadly to include mergers, consolidations, sales
or other dispositions of assets having an aggregate value in excess of 10
percent of the consolidated assets of the corporation, and certain transactions
that would increase the interested stockholder's proportionate share ownership
in the corporation) between an interested stockholder and a corporation for a
period of three years after the date the interested stockholder acquired its
stock, unless (i) the business combination is approved by the corporation's
board of directors prior to the date the interested stockholder acquired shares;
(ii) the interested stockholder acquired at least 85 percent of the voting stock
of the corporation in the transaction in which it became an interested
stockholder; or (iii) the business combination is approved by a majority of the
board of directors and by the affirmative vote of two-thirds of the votes
entitled to
-15-
<PAGE> 17
be cast by disinterested stockholders at an annual or special meeting. A
Delaware corporation, pursuant to a provision in its certificate of
incorporation or by-laws, may choose not to be governed by Section 203 of the
DGCL in which case such election becomes effective one year after its adoption.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Boston
EquiServe, L.P.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United
States: (i) through underwriters or dealers; (ii) directly to a limited number
of purchasers or to a single purchaser; or (iii) through agents. The Prospectus
Supplement with respect to the Securities being offered (the "Offered
Securities") will set forth the terms of the offering of the Offered Securities,
including the name or names of any underwriters or agents, the purchase price of
the Offered Securities and net proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more underwriters. The underwriter or underwriters with respect to a
particular underwritten series of Offered Securities, or, if an underwriting
syndicate is used, the managing underwriter or underwriters, will be set forth
on the cover of the applicable Prospectus Supplement. Unless otherwise set forth
in the Prospectus Supplement relating thereto, the obligations of the
underwriters to purchase the Offered Securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all of the Offered
Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities in respect of
which this Prospectus is delivered, and if so specified in the applicable
Prospectus Supplement, the Company will sell such Offered Securities to the
dealers as principals. The dealers may then resell such Offered Securities to
the public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the applicable Prospectus Supplement.
Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect to which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement.
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the underwriters, dealers or agents
may be required to make in respect thereof. Underwriters, dealers and agents may
be customers of, may engage in transactions with, or perform services for, the
Company in the ordinary course of business.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Steven L. Carson, Esq., General Counsel
of the Company. Mr. Carson is the beneficial owner of 1,180 shares of Common
Stock of the Company. Certain legal matters will be passed upon for any agents
or underwriters by counsel for such agents or underwriters identified in the
applicable Prospectus Supplement.
-16-
<PAGE> 18
EXPERTS
The consolidated financial statements and schedules of the Company as
of July 31, 1997 and July 31, 1996 and for each of the three years in the period
ended July 31, 1997, as set forth in the Company's Annual Report on Form 10-K
for the fiscal year ended July 31, 1997, have been audited by Arthur Andersen
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial statements and
schedules are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein by reference in reliance upon the
reports of such auditors pertaining to such financial statements (to the extent
covered by consents filed with the Commission) given upon the authority of such
firm as experts in accounting and auditing.
The consolidated financial statements of GII appearing in the Company's
Current Report on Form 8-K/A dated January 16, 1998 have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such financial statements have
been incorporated herein by reference in reliance upon such reports given upon
the authority of such firm as experts in accounting and auditing.
-17-
<PAGE> 19
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN, OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF
THIS PROSPECTUS.
-----------
TABLE OF CONTENTS
PAGE
Available Information.................................................2
Incorporation of Certain Information by Reference.....................2
Disclosure Regarding Forward-Looking Statements.......................2
The Company...........................................................4
Use of Proceeds.......................................................5
Ratios of Earnings to Fixed Charges...................................5
Description of Debt Securities........................................6
Description of Preferred Stock.......................................12
Description of Common Stock..........................................14
Plan of Distribution.................................................16
Legal Matters........................................................16
Experts..............................................................16
[WALLACE COMPUTER SERVICES, INC. LOGO]
WALLACE COMPUTER SERVICES, INC.
$300,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
_______________
PROSPECTUS
_______________
____________, 1998
-18-
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimated,
except the SEC registration fee.
S.E.C. registration fee..................................... $ 88,500
*Legal fees and expenses..................................... 75,000
*Printing and engraving...................................... 60,000
*Fees of accountants......................................... 20,000
*Fees of trustees............................................ 11,000
*Blue sky fees and expenses.................................. 5,000
*Rating agency fees.......................................... 210,000
*Miscellaneous............................................... 10,000
--------
*TOTAL $479,500
========
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
In accordance with the DGCL, the Certificate of Incorporation of the
Company contains a provision to limit the personal liability of the directors of
the Company for violations of their fiduciary duty. This provision eliminates
each director's liability to the Company or its stockholders for monetary
damages except to the extent provided by the DGCL (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct, deliberate
dishonesty or a knowing violation of law, (iii) under Section 174 of the DGCL
providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions, or (iv) for any transaction from which
a director derived an improper benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence.
The Certificate of Incorporation of the Company provide for
indemnification of the Company's officers and directors to the fullest extent
permitted by applicable law. It states that the indemnification provided therein
shall not be exclusive. In
<PAGE> 21
addition, the Company maintains insurance policies which provide coverage for
its officers and directors in certain situations where the Company cannot
directly indemnify such officers or directors.
ITEM 16. EXHIBITS.
A list of exhibits included as part of this Registration Statements is
set forth in the Exhibit Index appearing elsewhere herein and is incorporated
herein by reference.
ITEM 17. 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) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that 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 with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose 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 section 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 the 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 incurred or paid by a director, officer or
controlling person of the registrant
S-2
<PAGE> 22
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 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.
(d) The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
(e) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
S-3
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lisle, State of Illinois, on April 10, 1998.
WALLACE COMPUTER SERVICES, INC.
By:/s/ ROBERT J. CRONIN
---------------------------------
Robert J. Cronin
Director, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT J. CRONIN Director, President and April 10, 1998
- ------------------------------------ Chief Executive Officer
Robert J. Cronin
/s/ MICHAEL J. HALLORAN Vice President, Chief Financial April 10, 1998
- ------------------------------------ Officer and Assistant Secretary
Michael J. Halloran (Principal Accounting Officer)
/s/ * Chairman of the Board April 10, 1998
- ------------------------------------
Theodore Dimitriou
/s/ * Director April 10, 1998
- ------------------------------------
Albert W. Isenman, III
/s/ * Director April 10, 1998
- ------------------------------------
John C. Pope
/s/ * . Director April 10, 1998
- ------------------------------------
Neele E. Stearns, Jr.
*By: /s/ MICHAEL J. HALLORAN
--------------------------------
Michael J. Halloran
Attorney-in-Fact
</TABLE>
<PAGE> 24
EXHIBIT INDEX
EXHIBIT
NUMBER
*1.1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the Company as filed with
the Secretary of the State of Delaware on January 7, 1987
(incorporated by reference to Commission File No. 1-06528, Exhibit
3 to the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1987).
4.2 Certificate of Amendment amending Section 1 of Article FOURTH of
the Certificate of Incorporation of the Company as filed with the
Secretary of State of the State of Delaware on November 28, 1989
(incorporated by reference to Commission File No. 1-06528, Exhibit
3 to the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1987).
4.3 Certificate of Amendment amending Section 1 of Article FOURTH of
the Certificate of Incorporation of the Company as filed with the
Secretary of State of the State of Delaware on March 14, 1997
(incorporated by reference to Commission File No. 1-06528, Exhibit
3.1C to the Company's Annual Report on Form 10-K for the fiscal
year ended July 31, 1997).
4.4 Certificate of Designation, Preferences and Rights of Series A
Preferred Stock of the Company as filed with the Secretary of
State of the State of Delaware on March 15, 1990 (incorporated by
reference to Commission File No. 1-06528, Exhibit 3 to the
Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1990).
4.5 Amended and Restated By-Laws of the Company on January 5, 1996
(incorporated by reference to Commission File No. 1-06528, Exhibit
3.1 to the Company's Quarterly Report on Form 10-K dated January
31, 1996).
4.6 Form of Rights Agreement, dated as of March 14, 1990, between the
Company and Harris Trust and Savings Bank, as Rights Agent, which
includes as Exhibit A the Certificate of Designation, Preferences
and Rights of Series A Preferred Stock, as Exhibit B the form of
Rights Certificate, and as Exhibit C the form of Summary of Rights
(incorporated by reference to Commission File No. 1-06528, Exhibit
28.2 to the Company's Current Report on Form 8-K dated March 14,
1990).
4.7 Form of Indenture between the Company and The Bank of New York,
as trustee.
*4.8 Form of Debt Security.
*4.9 Certificate of Designation of Preferred Stock.
**5 Opinion of Steven L. Carson, Esq., General Counsel to the Company.
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Steven L. Carson, Esq. (included in Exhibit 5).
**24 Powers of Attorney (included in the signature page of this
Registration Statement).
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 on
Form T-1 relating to the Indenture.
* To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** Previously filed.
<PAGE> 1
EXHIBIT 4.7
- --------------------------------------------------------------------------------
WALLACE COMPUTER SERVICES, INC.
---------------------------
INDENTURE
Dated as of May __, 1998
---------------------------
THE BANK OF NEW YORK
Trustee
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
Section 1.1. Definitions.................................................................................1
Section 1.2. Other Definitions...........................................................................5
Section 1.3. Incorporation by Reference of Trust Indenture Act...........................................6
Section 1.4. Rules of Construction.......................................................................6
ARTICLE II. THE SECURITIES........................................................................................7
Section 2.1. Issuable in Series..........................................................................7
Section 2.2. Establishment of Terms of Series of Securities..............................................7
Section 2.3. Execution and Authentication................................................................9
Section 2.4. Registrar and Paying Agent.................................................................11
Section 2.5. Paying Agent to Hold Money in Trust........................................................11
Section 2.6. Securityholder Lists.......................................................................12
Section 2.7. Transfer and Exchange......................................................................12
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities...........................................12
Section 2.9. Outstanding Securities.....................................................................13
Section 2.10. Treasury Securities.......................................................................14
Section 2.11. Temporary Securities......................................................................14
Section 2.12. Cancellation..............................................................................14
Section 2.13. Defaulted Interest........................................................................14
Section 2.14. Global Securities.........................................................................14
Section 2.15. CUSIP, ISIN and Common Code Numbers.......................................................16
ARTICLE III. REDEMPTION.........................................................................................16
Section 3.1. Notice to Trustee..........................................................................16
Section 3.2. Selection of Securities to be Redeemed.....................................................16
Section 3.3. Notice of Redemption.......................................................................17
Section 3.4. Effect of Notice of Redemption.............................................................17
Section 3.5. Deposit of Redemption Price................................................................17
Section 3.6. Securities Redeemed in Part................................................................18
ARTICLE IV. COVENANTS...........................................................................................18
Section 4.1. Payment of Principal and Interest..........................................................18
Section 4.2. SEC Reports................................................................................18
Section 4.3. Compliance Certificate.....................................................................18
Section 4.4. Stay, Extension and Usury Laws.............................................................19
Section 4.5. Corporate Existence........................................................................19
Section 4.6. Taxes......................................................................................19
Section 4.7. Calculation of Original Issue Discount.....................................................19
ARTICLE V. SUCCESSORS...........................................................................................20
Section 5.1. When Company May Merge, Etc................................................................20
Section 5.2. Successor Corporation Substituted..........................................................20
ARTICLE VI. DEFAULTS AND REMEDIES...............................................................................20
Section 6.1. Events of Default..........................................................................20
Section 6.2. Acceleration of Maturity; Rescission and Annulment.........................................22
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee............................23
Section 6.4. Trustee May File Proofs of Claim...........................................................24
Section 6.5. Trustee May Enforce Claims Without Possession of Securities................................25
Section 6.6. Application of Money Collected.............................................................25
Section 6.7. Limitation on Suits........................................................................25
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest...........................26
Section 6.9. Restoration of Rights and Remedies.........................................................26
Section 6.10. Rights and Remedies Cumulative............................................................26
Section 6.11. Delay or Omission Not Waiver..............................................................26
Section 6.12. Control by Holders........................................................................27
Section 6.13. Waiver of Past Defaults...................................................................27
Section 6.14. Undertaking for Costs.....................................................................27
ARTICLE VII. TRUSTEE............................................................................................28
Section 7.1. Duties of Trustee..........................................................................28
Section 7.2. Rights of Trustee..........................................................................29
Section 7.3. Individual Rights of Trustee...............................................................30
Section 7.4. Trustee's Disclaimer.......................................................................30
Section 7.5. Notice of Defaults.........................................................................30
Section 7.6. Reports by Trustee to Holders..............................................................31
Section 7.7. Compensation and Indemnity.................................................................31
Section 7.8. Replacement of Trustee.....................................................................32
Section 7.9. Successor Trustee by Merger, etc...........................................................33
Section 7.10. Eligibility; Disqualification.............................................................33
Section 7.11. Preferential Collection of Claims Against Company.........................................33
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE............................................................33
Section 8.1. Satisfaction and Discharge of Indenture....................................................33
Section 8.2. Application of Trust Funds; Indemnification................................................34
Section 8.3. Legal Defeasance of Securities of any Series...............................................35
Section 8.4. Covenant Defeasance........................................................................36
Section 8.5. Repayment to Company.......................................................................38
ARTICLE IX. AMENDMENTS AND WAIVERS..............................................................................38
Section 9.1. Without Consent of Holders.................................................................38
Section 9.2. With Consent of Holders....................................................................38
Section 9.3. Limitations................................................................................39
Section 9.4. Compliance with Trust Indenture Act........................................................40
Section 9.5. Revocation and Effect of Consents..........................................................40
Section 9.6. Notation on or Exchange of Securities......................................................40
Section 9.7. Trustee Protected..........................................................................40
ARTICLE X. MISCELLANEOUS........................................................................................41
Section 10.1. Trust Indenture Act Controls..............................................................41
Section 10.2. Notices...................................................................................41
Section 10.3. Communication by Holders with Other Holders...............................................42
Section 10.4. Certificate and Opinion as to Conditions Precedent........................................42
</TABLE>
ii
<PAGE> 4
<TABLE>
Page
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<S> <C>
Section 10.5. Statements Required in Certificate or Opinion.............................................42
Section 10.6. Rules by Trustee and Agents...............................................................42
Section 10.7. Legal Holidays............................................................................43
Section 10.8. No Recourse Against Others................................................................43
Section 10.9. Counterparts..............................................................................43
Section 10.10. Governing Laws...........................................................................43
Section 10.11. No Adverse Interpretation of Other Agreements............................................43
Section 10.12. Successors...............................................................................43
Section 10.13. Severability.............................................................................43
Section 10.14. Table of Contents, Headings, Etc.........................................................44
Section 10.15. Securities in a Foreign Currency or in ECU...............................................44
Section 10.16. Judgment Currency........................................................................44
ARTICLE XI. SINKING FUNDS.......................................................................................45
Section 11.1. Applicability of Article..................................................................45
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.....................................45
Section 11.3. Redemption of Securities for Sinking Fund.................................................46
</TABLE>
iii
<PAGE> 5
WALLACE COMPUTER SERVICES, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of May __, 1998
<TABLE>
<S> <C>
Section 310(a)(1) ........................................................................... 7.10
(a)(2) ........................................................................... 7.10
(a)(3) ........................................................................... Not Applicable
(a)(4) ........................................................................... Not Applicable
(a)(5) ........................................................................... 7.10
(b) ........................................................................... 7.10
Section 311(a) ........................................................................... 7.11
(b) ........................................................................... 7.11
(c) ........................................................................... Not Applicable
Section 312(a) ........................................................................... 2.6
(b) ........................................................................... 10.3
(c) ........................................................................... 10.3
Section 313(a) ........................................................................... 7.6
(b)(1) ........................................................................... 7.6
(b)(2) ........................................................................... 7.6
(c)(1) ........................................................................... 7.6
(d) ........................................................................... 7.6
Section 314(a) ........................................................................... 4.2, 10.5
(b) ........................................................................... Not Applicable
(c)(1) ........................................................................... 10.4
(c)(2) ........................................................................... 10.4
(c)(3) ........................................................................... Not Applicable
(d) ........................................................................... Not Applicable
(e) ........................................................................... 10.5
(f) ........................................................................... Not Applicable
Section 315(a) ........................................................................... 7.1
(b) ........................................................................... 7.5
(c) ........................................................................... 7.1
(d) ........................................................................... 7.1
(e) ........................................................................... 6.14
Section 316(a) ........................................................................... 2.10
(a)(1)(A) ........................................................................... 6.12
(a)(1)(B) ........................................................................... 6.13
(b) ........................................................................... 6.8
Section 317(a)(1) ........................................................................... 6.3
(a)(2) ........................................................................... 6.4
(b) ........................................................................... 2.5
Section 318(a) ........................................................................... 10.1
</TABLE>
- ----------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 6
Indenture dated as of May __, 1998 between Wallace Computer
Services, Inc., a Delaware corporation ("Company"), and The Bank of New York, a
New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued
under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities or by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the
Board of Directors or pursuant
<PAGE> 7
to authorization by the Board of Directors and to be in full force and effect
on the date of the certificate and delivered to the Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or
the City of Chicago, Illinois on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board of Directors, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered.
"Debt" of any person as of any date means, without duplication, all
indebtedness of such person in respect of borrowed money, including all
interest, fees and expenses owed in respect thereto (whether or not the recourse
of the lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments.
"Default" means any event which is, or after notice or passage of
time would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through
a computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository" as used with respect to the Securities of any Series
shall mean the Depository with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an amount
less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
2
<PAGE> 8
"ECU" means the European Currency Unit as determined by the
Commission of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations
of the government that issued or caused to be issued such currency for the
payment of which obligations its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a Security
is registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended or supplemented from
time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
"interest" with respect to any Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board of Directors, any
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Company's principal executive officer, principal
financial officer or principal accounting officer.
3
<PAGE> 9
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on, and any Additional Amounts in
respect of, the Security.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments
of the Company of any Series authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary
of the Company that would be a "significant subsidiary" as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof, or
(ii) any group of direct or indirect Subsidiaries of the Company that, taken
together as a group, would be a "significant subsidiary" as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any specified person means any corporation of which
at least a majority of the outstanding stock having by the terms thereof
ordinary voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by
such person, or by one or more other Subsidiaries, or by such person and one or
more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture
4
<PAGE> 10
Act of 1939 is amended after such date, "TIA" means, to the extent required by
any such amendment, the Trust Indenture Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
Section 1.2. Other Definitions.
DEFINED IN
TERM SECTION
- ---- -------
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
5
<PAGE> 11
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means the
Company and any successor obligor upon the
Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted
accounting principles;
(c) references to "generally accepted accounting principles"
shall mean United States generally accepted accounting principles in
effect as of the time when and for the period as to which such accounting
principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
6
<PAGE> 12
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board Resolution,
Officers' Certificate or supplemental indenture may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1, and either as to such Securities within the Series or as to
the Series generally, in the case of Subsections 2.2.2 through 2.2.22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate pursuant
to authority granted under a Board Resolution:
2.2.1. the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the
Securities of the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per
annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange
index or financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, shall commence and be
payable and any regular record date for the interest payable on any interest
payment date;
7
<PAGE> 13
2.2.6. the place or places where the principal of, premium, if any,
and interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase
the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which Securities of the Series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices at which
the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such
repurchase obligations;
2.2.10. if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the forms of the Securities of the Series in bearer or fully
registered form, and whether the Securities will be issuable as Global
Securities;
2.2.12. if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to, the
ECU, and if such currency of denomination is a composite currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite currency;
2.2.14. the designation of the currency, currencies or currency
units in which payment of the principal of, premium, if any, and interest, if
any, on the Securities of the Series will be made;
2.2.15. if payments of principal of, premium, if any, or interest,
if any, on the Securities of the Series are to be made in one or more
currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such
payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies other than that in which the Securities are denominated
or designated to be
8
<PAGE> 14
payable or by reference to a commodity, commodity index, stock exchange index or
financial index;
2.2.17. the provisions, if any, relating to any security provided for
the Securities of the Series;
2.2.18. the provisions, if any, relating to the subordination the
Securities of the Series;
2.2.19. the provisions, if any, relating to restrictions on transfer of
the Securities of the Series;
2.2.20. any addition to or change in the Events of Default which applies
to any Securities of the Series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 6.2;
2.2.21. any addition to or change in the covenants set forth in Articles
IV or V which applies to Securities of the Series;
2.2.22. any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
2.2.23. the Depository, if any, and any interest rate calculation
agents, exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to the Board Resolution, supplemental indenture or
Officers' Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers' Certificate.
Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
9
<PAGE> 15
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental
indenture hereto or Officers' Certificate delivered pursuant to Section 2.2,
except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4(a), (c) an Opinion of Counsel complying with Section 10.4(b)
and (d) an Opinion of Counsel which shall state: (1) that the form of such
Securities has been established by a supplemental indenture or by or pursuant
to a resolution of the Board of Directors in accordance with Sections 2.1 and
2.2 and in conformity with the provisions of this Indenture; (2) that the terms
of such Securities have been established in accordance with Section 2.1 and in
conformity with the other provisions of this Indenture; (3) that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to the bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general equity
principles; and (4) that no consent, approval, authorization, order,
registration or qualification of any governmental agency or body having
jurisdiction over the Company is required for the execution and delivery of
such Securities by the Company, except such as have been obtained (except that
no opinion need to be expressed as to state securities and Blue Sky laws).
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such Series: (a) if the Trustee, being advised in
writing, by counsel, determines that such action may not lawfully be taken;
or (b) if the Trustee in reasonable good faith by its board of directors or
trustees, executive committee or a trust committee of directors and/or
vice-presidents shall determine that such action would expose the Trustee to
personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
10
<PAGE> 16
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment ("Paying Agent"), where Securities of
such Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect of
the Securities of such Series and this Indenture may be served ("Service
Agent"). The Registrar shall keep a register with respect to each Series of
Securities and their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required Registrar, Paying Agent or
Service Agent or shall fail to furnish the Trustee with the name and address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 for Securities of any Series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying
Agent or Service Agent, as the case may be, is appointed prior to the time
Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the Trustee, all
money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of Securityholders of any Series of
Securities all money held by it as Paying Agent.
11
<PAGE> 17
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities issued in fully registered form and
shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten days before
each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each
Series of Securities issued in fully registered form.
Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required to (a)
issue, register the transfer of, or exchange Securities of any Series for the
period beginning at the opening of business fifteen days immediately preceding
the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, (b)
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part, or (c)
transfer, register the transfer of, or exchange Securities of any Series that
contain transfer restrictions, unless and until all such restrictions are
removed or satisfied.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen
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Security, a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8 or paid, it
ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced or paid Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or
an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
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
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payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of a Series
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon a
Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall deliver such cancelled
Securities to the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who
are Securityholders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail to the Trustee and to each Securityholder of
the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a
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Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depository for such Global Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security held by a Depository in the United States shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names
of Holders other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depository within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officers' Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depository shall
direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security held by
a Depository in the United States may not be transferred except as a whole by
the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.
2.14.3. Legend. Any Global Security issued hereunder to a Depository
in the United States shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. Unless this certificate is presented
by an authorized representative of the Depository to the Company or its agent
for registration of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), any transfer, pledge or other use hereof for
value or otherwise by or to any person is wrongful inasmuch as the registered
owner hereof, Cede & Co., has an interest herein."
2.14.4. Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
2.14.5. Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of,
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premium, if any, and interest, if any, on any Global Security shall be made to
the Holder thereof.
2.14.6. Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
Section 2.15. CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN" or
"Common Code" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP," "ISIN" or "Common Code" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company shall promptly notify the Trustee of
any changes in such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify
the Trustee of the redemption date and the principal amount of Series of
Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the
Trustee).
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. Securities of the Series and portions of
them it selects shall be in amounts of $1,000
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or whole multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2.10, the minimum
principal denomination for each Series and integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for
redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be
redeemed (including CUSIP, ISIN and Common Code numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called
for redemption ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the
terms of the particular Series or the Securities of a Series being
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. A notice of redemption may
not be conditional. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption
date, the Company shall deposit with the Paying Agent money sufficient to pay
the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.
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Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest, if any, on the Securities of that Series in accordance with the
terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee, within 15 days after it
files them with the SEC, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant (without regard to periods of grace or notice requirements)
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers'
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Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
Section 4.7. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey,
transfer or lease all or substantially all of its assets to, any person (a
"successor person"), and may not permit any person to merge into, or convey,
transfer or lease its assets substantially as an entirety to, the Company,
unless:
(a) the successor person (if any) is a corporation, partnership,
trust or other entity organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the Company's obligations
on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no
Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation
of the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers' Certificate,
it is provided that such Series shall not have the benefit of said Event of
Default:
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(a) default in the payment of any interest on any Security of that Series
when it becomes due and payable, and continuance of such default for a period of
30 days (unless the entire amount of such payment is deposited by the Company
with the Trustee or with a Paying Agent prior to the expiration of such period
of 30 days); or
(b) default in the payment of the principal of, or premium, if any, on, any
Security of that Series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series; or
(d) default in the performance or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty that has been
included in this Indenture solely for the benefit of Series of Securities other
than that Series), which default continues uncured for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of not less than a
majority in principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) a default under any Debt of the Company (including a default with
respect to Securities of any Series other than that Series) or any Subsidiary,
whether such Debt now exists or shall hereafter be created, if (A) such default
results from the failure to pay any such Debt when it becomes due, (B) the
principal amount of such Debt, together with the principal amount of any other
such Debt in default for failure to pay principal at stated final maturity or
the maturity of which has been so accelerated, aggregates an amount equal to or
greater than the amount specified with respect to this Section 6.1(e) in a Board
Resolution, supplemental indenture or Officers' Certificate, pursuant to Section
2.2.20 hereof, and (C) such Debt is not discharged or such acceleration is not
rescinded or annulled within 10 days after written notice to the Company by the
holder or holders of such Debt in the manner provided for in the applicable debt
instrument; or
(f) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
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(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(h) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.2.20
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at
the time outstanding occurs and is continuing (other than an Event of Default
referred to in Section 6.1(f) or (g)), then in every such case the Trustee or
the Holders of not less than a majority in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and
unpaid interest, if any, on all of the Securities of that Series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and accrued and unpaid interest, if any, shall become
immediately due and payable. If an Event of Default specified in Section 6.1(f)
or (g) shall occur, the principal amount (or specified amount) of and accrued
and unpaid interest, if any, on all outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
any Series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(i) all overdue interest, if any, on all Securities of that
Series,
(ii) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon any overdue principal and overdue interest at the rate or
rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of principal of any Security at
the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment when
and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for
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the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or deemed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such Series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind (subject to any subordination provisions applicable to the
Securities of any Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
No Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that Series;
(b) the Holders of not less than a majority in principal amount
of the outstanding Securities of that Series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and interest, if any, on,
such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
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time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on, any Security of such Series or, if
applicable, in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such
Series affected (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for 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 and expenses, 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 Company, to any suit instituted by the Trustee, to any suit
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instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption, on
the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise 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
person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the
case of any such Officers' Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such Officers'
Certificates and Opinions of Counsel to determine whether or not
they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathmetical calculations or
other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph
(b) of this Section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Securities of any Series in
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good faith in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Securities of such
Series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care as are set
forth in paragraphs (a), (b) and (c) of this Section with respect to the
Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely on and shall be protected
in acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care. No Depository shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
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(e) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer
of the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Security of any Series, the Trustee may withhold the notice if and so long
as its corporate trust committee or a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
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Section 7.6. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each April 1 following the date of this Indenture deliver to
Holders a brief report, dated as of April 1, which complies with the provisions
of such Section 313(a).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and each stock
exchange on which the Securities of that Series are listed. The Company shall
promptly notify the Trustee when Securities of any Series are listed on any
stock exchange or of any delisting thereof.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed in writing between the Company
and the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall
indemnify each of the Trustee and any predecessor Trustee against any and all
loss, damage, claim, liability or expense (including the cost of defending
itself) incurred by it in the acceptance or performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The provisions of this Section shall survive the termination of
this Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or
more Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one
or more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer
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Securities are outstanding, publish such notice on one occasion in an Authorized
Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always
have a combined capital and surplus of at least $25,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further
effect (except as hereinafter provided in this Section 8.1), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity within one year, or
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(3) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(4) are deemed paid and discharged pursuant to
Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.7, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this
Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
deposited with the Trustee pursuant to Section 8.1, all money and U.S.
Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.3 or 8.4 and all money received by the
Trustee in respect of U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4,
shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the persons entitled thereto, of
the principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations or Foreign Government Obligations deposited pursuant
to Sections 8.3 or 8.4 or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
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(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or Foreign
Government Obligations or money held by it as provided in Sections 8.3 or
8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or Foreign Government Obligations or money
were deposited or received. This provision shall not authorize the sale by
the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2.20, to be inapplicable to Securities of any Series, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d) hereof, (i)
payment of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii)
the benefit of any mandatory sinking fund payments applicable to the
Securities of such Series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities
of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5;
and
(c) the rights, powers, trust and immunities of the Trustee here
under;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities (i) in
the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than
a composite currency), money and/or Foreign Government Obligations, which
through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient,
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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 each installment of principal (including
mandatory sinking fund or analogous payments) of and interest, if any, on
all the Securities of such Series on the dates such installments of
interest or principal are due;
(e) such deposit 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 Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities
of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel 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 deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to
Section 2.2.20 to be inapplicable to Securities of any Series, on and after the
91st day after the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with any term, provision or condition set forth
under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any
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additional covenants contained in a supplemental indenture hereto for a
particular Series of Securities or a Board Resolution or an Officers'
Certificate delivered pursuant to Section 2.2.20 (and the failure to comply with
any such covenants shall not constitute a Default or Event of Default under
Section 6.1) and the occurrence of any event described in clause (e) of Section
6.1 shall not constitute a Default or Event of Default hereunder, with respect
to the Securities of such Series, provided that the following conditions shall
have been satisfied:
(a) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal tender
in the United States) and/or U.S. Government Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal, premium, if any, and interest,
if any, on and any mandatory sinking fund in respect of the Securities of
such Series on the dates such installments of interest or principal are
due;
(b) Such deposit 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 Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and 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 deposit and defeasance had not occurred;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
37
<PAGE> 43
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal and interest
that remains unclaimed for two years. After that, Securityholders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture
or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to make any change that does not adversely affect the rights
of any Securityholder;
(e) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this
Indenture;
(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; or
(g) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
Unless otherwise specified with respect to any Series of
Securities, the Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), 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 Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal
38
<PAGE> 44
amount of the outstanding Securities of each Series affected by such waiver by
notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with
respect to such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment
or waiver may not:
(a) change the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of
interest (including default interest) on any Security;
(c) reduce the principal of, or premium, if any, on, or change
the Stated Maturity of, any Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of, premium, if any, or interest, if any, on, any Security
(except a rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that
resulted from such acceleration);
(f) make the principal of, premium, if any, or interest, if any,
on, any Security payable in any currency other than that stated in the
Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this sentence),
10.15 or 10.16; or
39
<PAGE> 45
(h) waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any
Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (a) through (g) of Section 9.3. In that
case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment
or waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
40
<PAGE> 46
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company:
Wallace Computer Services, Inc.
2275 Cabot Drive
Lisle, Illinois 60532-3630
(630) 588-5000
Attention: President
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, NY 10286
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar and,
if any Bearer Securities are outstanding, published in an Authorized Newspaper.
Failure to mail a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not
the Securityholder receives it.
If the Company mails a notice or communication to Securityholders,
it shall mail a copy to the Trustee and each Agent at the same time.
41
<PAGE> 47
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to
TIA Section 312(b) with other Securityholders of that Series or any other
Series with respect to their rights under this Indenture or the Securities of
that Series or all Series. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and 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.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting
of Securityholders of one or more Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
42
<PAGE> 48
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers'
Certificate or supplemental indenture for a particular Series, a "Legal Holiday"
is any day that is not a Business Day. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
43
<PAGE> 49
Section 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of
or interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the
44
<PAGE> 50
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order to
close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of a Series, except as otherwise
permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding Securities of
such Series to which such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to
45
<PAGE> 51
the terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or
other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officers' Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to
be released to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
46
<PAGE> 52
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
Wallace Computer Services, Inc.
By:
--------------------------------
Name:
Title:
The Bank of New York, as Trustee
By:
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 12
Wallace Computer Services, Inc.
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Six
Months Months
Twelve months ended July, 31 Ended Ended
1997 1996 1995 1994 1993 1/31/98 1/31/97
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
(a) Consolidated Net Income
(before extraordinary) 81,282 72,999 55,297 47,268 41,170 41,831 42,737
(b) Income Taxes 53,069 45,479 32,163 26,588 21,209 27,598 27,902
(c) Interest Expense 2,619 1,312 1,209 1,325 1,196 8,215 1,059
(d) Rent Expense 4,200 3,619 3,571 3,519 3,803 3,194 2,062
(e) Capitalized Interest 1,321 1,406 1,508 986 787 587 718
------------------------------------------------------------------------------------
Ratio of earnings to fixed charges 26.2 31.2 23.4 22.2 20.2 8.0 29.7
====================================================================================
</TABLE>
Calculation: [(a) + (b) + (c) + ((1/3) x (d)) + (e)] / [(c) + ((1/3) x (d))
+ (e)]
<PAGE> 1
EXHIBIT 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Wallace Computer Services, Inc. on
Form S-3 (Registration No. 333-46807) of our report dated September 3, 1997
incorporated by reference in the Wallace Computer Services, Inc. Annual Report
on Form 10-K for the fiscal year ended July 31, 1997, and to all references to
our Firm included in this Registration.
Arthur Anderson LLP
Chicago, Illinois
April 9, 1998
<PAGE> 1
EXHIBIT 23.2
We consent to the reference to our firm under the caption "Exports" in the
Registration Statement (Amendment No. 1 to From S-3, No. 333-46807) and related
Prospectus of Wallace Computer Services, Inc. and to the incorporation by
reference therein of our report dated March 12, 1997, with respect to the
consolidated financial statements of Graphic Industries, Inc. included in
Wallace Computer Services, Inc.'s Form 8-KA dated January 16, 1998, filed with
the Securities and Exchange Commission.
Ernst & Young LLP
April 9, 1998
Atlanta, Georgia
<PAGE> 1
Exhibit 25
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO
RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
- --------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- --------------------------------------------
WALLACE COMPUTER SERVICES, INC.
(Exact name of obligor as specified in its charter)
Delaware 36-2515832
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2275 Cabot Drive 60532
Lisle, Illinois (Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO
RULE 901(d) OF REGULATION S-T
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------
Name Address
- --------------------------------------------------
<TABLE>
<S> <C> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 8th day of April, 1998.
THE BANK OF NEW YORK
By: /s/ THOMAS B. ZAKRZEWSKI
----------------------------
Name: THOMAS B. ZAKRZEWSKI
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................... $5,004,638
Interest-bearing balances ............ 1,271,514
Securities:
Held-to-maturity securities .......... 1,105,782
Available-for-sale securities ........ 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell...... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .............................. 34,916,196
LESS: Allowance for loan and
lease losses ........................ 581,177
LESS: Allocated transfer risk
reserve.............................. 429
Loans and leases, net of unearned
income, allowance, and reserve 34,334,590
Assets held in trading accounts ....... 2,035,284
Premises and fixed assets (including
capitalized leases) .................. 671,664
Other real estate owned ............... 13,306
Investments in unconsolidated
subsidiaries and associated
companies ............................ 210,685
Customers' liability to this bank on
acceptances outstanding .............. 1,463,446
Intangible assets ..................... 753,190
Other assets .......................... 1,784,796
------------
Total assets .......................... $57,536,995
============
LIABILITIES
Deposits:
In domestic offices .................. $27,270,824
Noninterest-bearing .................. 12,160,977
Interest-bearing ..................... 15,109,847
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .... 14,687,806
Noninterest-bearing ................. 657,479
Interest-bearing .................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase.. 1,946,099
Demand notes issued to the U.S.
Treasury ............................ 283,793
Trading liabilities .................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ............................ 2,245,014
With remaining maturity of more than
one year through three years.......... 0
With remaining maturity of more than
three years ........................ 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............... 1,473,588
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 2,193,031
------------
Total liabilities .................... 52,718,298
------------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ............................ 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities .......................... 25,428
Cumulative foreign currency transla-
tion adjustments .................... ( 16,342)
------------
Total equity capital ................. 4,818,697
------------
Total liabilities and equity
capital ............................. $ 57,536,995
============
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
--
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
--
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