<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
UNOVA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4647021
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
---------------
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210
(310) 888-2500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
NORMAN L. ROBERTS, ESQ.,
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
UNOVA, INC.
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210
(310) 888-2500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
WITH A COPY TO:
JOHN L. SAVVA
SULLIVAN & CROMWELL
444 SOUTH FLOWER STREET, SUITE 1200
LOS ANGELES, CALIFORNIA 90071
(213) 955-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED(1) REGISTERED(2) PER UNIT (3) PRICE(2)(4) REGISTRATION FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share (5)(6).
Preferred Stock, par
value $.01 per share..
Series A Junior
Participating Preferred
Stock, par value $.01
per share.............
Depositary Shares (7)..
Debt Securities
Warrants..............
Total................. $600,000,000 $600,000,000 $177,000
- --------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) There are being registered hereunder such indeterminate number of shares
of Common Stock, Preferred Stock and Series A Junior Participating
Preferred Stock, such indeterminate number of Depositary Shares and
Warrants to Purchase Debt Securities, Preferred Stock, Common Stock or
Depositary Shares, and such indeterminate principal amount of Debt
Securities of the Registrant as shall have an aggregate initial offering
price not to exceed $600,000,000. If any Debt Securities are issued at an
original issue discount, then the securities registered shall include such
additional Debt Securities as may be necessary such that the aggregate
initial public offering price of all securities issued pursuant to this
Registration Statement
(Footnotes continued on next page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
BECOMES EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
will equal $600,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder. There are
also being registered hereunder an indeterminate number of shares of Common
Stock, Preferred Stock and Series A Junior Participating Preferred Stock, an
indeterminate number of Depositary Shares and an indeterminate principal
amount of Debt Securities of the Registrant as shall be issuable upon
conversion or exchange of convertible or exchangeable Debt Securities or of
shares of convertible or exchangeable Preferred Stock registered hereby, or
as shall be issuable pursuant to anti-dilution provisions with respect to
the Warrants registered hereby.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(3) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended (the
"Securities Act").
(5) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) under the Securities Act.
(6) Each share of Common Stock includes a right to purchase from the Registrant
one one-hundredth of a share of Series A Junior Participating Preferred
Stock of the Registrant (the "Rights"). Prior to the occurrence of certain
events, none of which have occurred as of the date hereof, the Rights will
not be exercisable or evidenced separately from the Common Stock.
(7) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. If the Registrant elects
to offer to the public fractional interests in shares of the Preferred
Stock registered hereunder, Depositary Receipts will be distributed to
those persons purchasing such fractional interests, and the shares of
Preferred Stock will be issued to the Depositary under the Deposit
Agreement.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 19, 1997
$600,000,000
UNOVA, INC.
COMMON STOCK, PREFERRED STOCK,
DEPOSITARY SHARES, DEBT SECURITIES AND WARRANTS
UNOVA, Inc. (the "Company") may offer from time to time (i) common stock, par
value $.01 per share ("Common Stock"), (ii) one or more series of Preferred
Stock, par value $.01 per share ("Preferred Stock"), which may be evidenced by
Depository Shares (as defined herein), (iii) one or more series of debt
securities ("Debt Securities"), consisting of debentures, notes and/or other
unsecured evidences of indebtedness, which may be unsubordinated ("Senior Debt
Securities") or subordinated ("Subordinated Debt Securities") to certain other
obligations of the Company, and (iv) warrants to purchase Debt Securities,
Preferred Stock, Common Stock or Depositary Shares ("Warrants," and together
with the Common Stock, Preferred Stock, Depositary Shares and Debt Securities,
"Securities"), at an aggregate initial offering price not to exceed
$600,000,000 (or its equivalent in another currency or currency unit based on
the exchange rate at the time of sale) in amounts, at prices and on terms to be
determined at the time of offering. Securities may be offered, separately or
together, in separate series, in amounts, at prices and on terms to be set
forth in one or more supplements to this Prospectus (each a "Prospectus
Supplement").
The specific terms of the Securities in respect to which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable (i) in the case of Common Stock, the number of
shares; (ii) in the case of Preferred Stock, the specific serial designation,
the number of shares, any dividend, redemption, liquidation, conversion,
exchange, sinking fund, voting and other rights, if any, and whether interests
in such Preferred Stock will be evidenced by Depositary Shares and, if so, the
identity of the Depositary; (iii) in the case of Debt Securities, whether they
are Senior or Subordinated Debt Securities and subordination terms, if any, the
specific designation, aggregate principal amount, the currency or currency unit
in which payments are to be made, denominations, maturity, premium, if any,
rate (which may be fixed or variable) and time of payment of interest, if any,
terms for redemption at the option of the Company or the holder, if any, terms
for sinking fund payments, if any, and, in the case of Subordinated Debt
Securities, conversion or exchange rights, if any; and (iv) in the case of
Warrants, the duration, offering price, exercise price and detachability of
such Warrants, as well as a description of the Common Stock, Preferred Stock,
Depositary Shares or Debt Securities issuable upon such exercise. Unless
otherwise specified in the applicable Prospectus Supplement, Securities other
than Common Stock will be issued in permanent global form and Common Stock will
be issued through the Company's direct registration system.
The Common Stock is listed on the New York Stock Exchange (the "NYSE") under
the symbol "UNA". Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange. The applicable Prospectus Supplement will also
contain information, where applicable, as to any other listing on a securities
exchange of Securities covered by such Prospectus Supplement.
The Company may sell Securities to or through one or more underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the number or principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such underwriters or
agents. See "Plan of Distribution". No Securities may be sold without delivery
of the applicable Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (together with the rules and regulations
thereunder, the "Exchange Act"), and in accordance therewith, files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's Regional Offices in New York (7 World Trade
Center, 13th Floor, New York, New York 10048) and Chicago (Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661) and copies of
such materials can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Such material is also available from the Commission through the
Internet at http://www.sec.gov. The Common Stock is listed on the NYSE.
Reports, proxy statements and other information relating to the Company can
also be inspected at the offices of the NYSE, 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") (of which this Prospectus is a part) under
the Securities Act of 1933, as amended (the "Securities Act") with respect to
the Securities. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission.
Statements contained in this Prospectus as to the contents of any contract or
other documents are not necessarily complete, and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement, each such statement being qualified in all
respects by such reference and the exhibits and schedules thereto. For further
information regarding the Company and the Securities, reference is hereby made
to the Registration Statement and such exhibits and schedules which may be
obtained from the Commission at its principal office in Washington, D.C. upon
payment of the fees prescribed by the Commission.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
001-13279) under Section 13(a) or 15(d) of the Exchange Act are hereby
incorporated by reference in this Prospectus:
a. The Company's Registration Statement on Form 10, filed on August 18,
1997, as amended by Amendment No. 1 thereto filed on October 1, 1997 and
Amendment No. 2 thereto filed on October 22, 1997 (as so amended, the
"Form 10").
b. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
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 hereof and prior to the
termination of the offering of any Securities are hereby incorporated by
reference into this Prospectus and shall be deemed a part hereof from the date
of filing of such documents.
Any statement contained herein, in any supplement hereto or 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 any
supplement hereto 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, this Prospectus or any supplement hereto.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed by mail, addressed to UNOVA, Inc., 360 North Crescent Drive, Beverly
Hills, California 90210, Attention: Investor Relations Office, by telephone to
(310) 888-2583, or by electronic mail to [email protected]. This information
may also be requested through the Company's website on the Internet at
http://www.unova.com.
3
<PAGE>
THE COMPANY
The Company is a leading industrial technologies company providing customers
with innovative solutions for improving their efficiency and productivity
through its two business segments--Automated Data Systems ("ADS") and
Industrial Automation Systems ("IAS"). Automated Data Systems principally
serves the industrial market, providing automated data collection and mobile
computing products and services. Customers include distribution and
transportation companies, food and beverage operations, manufacturing
industries, health care providers and government agencies. Industrial
Automation Systems primarily serves the worldwide automotive, off-road and
diesel engine manufacturing industries, providing integrated machining
systems, body welding and assembly systems and precision grinding and abrasive
systems.
Prior to October 31, 1997, the Company was a wholly-owned subsidiary of
Western Atlas Inc. ("Western Atlas"). The Company became an independent public
company on October 31, 1997 (the "Distribution Date") upon the distribution,
in the form of a dividend, of all outstanding Common Stock to shareholders of
Western Atlas.
The Company's principal executive offices are located at 360 North Crescent
Drive, Beverly Hills, California 90210, and its telephone number at such
address is (310) 888-2500.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including, without limitation, capital
expenditures, possible future acquisitions, repurchases of capital stock,
refinancing of outstanding indebtedness and working capital requirements.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges of the Company for each of the two
years ended July 31, 1993, the five months ended December 31, 1993, each of
the three years ended December 31, 1996 and the nine months ended September
30, 1997 were as follows:
<TABLE>
<CAPTION>
YEAR ENDED FIVE MONTHS YEAR ENDED NINE MONTHS
JULY 31, ENDED DECEMBER 31, ENDED
---------- DECEMBER 31, -------------- SEPTEMBER 30,
1992 1993 1993 1994 1995 1996 1997
----- ----- ------------ ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges........... 4.5 6.4 0.2 2.8 3.9 5.7 4.2
</TABLE>
For the purpose of computing this ratio, earnings consist of earnings before
income taxes, cumulative effect of a change in accounting principle and the
charge for acquired in-process research and development, plus fixed charges.
Fixed charges consist of interest expense on all indebtedness (including
allocated charges from Western Atlas) and the portion of operating lease
rental expense that is representative of the interest factor. For the five
months ended December 31, 1993, fixed charges exceeded earnings, as so
defined, by $5.1 million. For the nine months ended September 30, 1997, fixed
charges exceeded earnings, as so defined, by $140.8 million when including the
$203.3 million acquired in-process research and development charge.
4
<PAGE>
DESCRIPTION OF COMMON STOCK
The following summaries of certain provisions of the Certificate of
Incorporation (the "Certificate"), and By-laws of the Company (the "By-laws")
(and the Rights Agreement (as defined below)) do not purport to be complete
and are qualified in their entirety by reference to such instruments, each of
which is incorporated by reference as an exhibit to the Registration Statement
of which this Prospectus is a part.
AUTHORIZED CAPITAL
The Company's authorized capital stock consists of 250,000,000 shares of
Common Stock and 50,000,000 shares of Preferred Stock. Each outstanding share
of Common Stock currently has attached to it one preferred share purchase
right (a "Right") issued pursuant to a Share Purchase Rights Plan (the "Rights
Plan"). Each Right entitles its registered holder to purchase from the Company
one one-hundredth of a share of Series A Junior Participating Preferred Stock,
par value $.01 per share ("Series A Preferred Stock") as described under "--
Rights Plan" below.
As of October 31, 1997, there were 54,510,193 shares of Common Stock and no
shares of Preferred Stock issued and outstanding. As of October 31, 1997,
there were 11,000,000 shares of Common Stock reserved for issuance under
various benefit plans.
GENERAL
The holders of Common Stock will be entitled to one vote for each share on
all matters voted on by shareholders, including elections of directors, and,
except as otherwise required by law or provided in any resolution adopted by
the Board of Directors of the Company (the "Board") with respect to any series
of Preferred Stock, the holders of such shares exclusively will possess all
voting power. The Certificate does not provide for cumulative voting in the
election of directors. Subject to any preferential rights of any outstanding
series of Preferred Stock created by the Board from time to time, the holders
of Common Stock will be entitled to such dividends as may be declared from
time to time by the Board from funds available therefor, and upon liquidation
will be entitled to receive pro rata all assets of the Company available for
distribution to such holders.
The Company maintains a direct registration system ("DRS") for the Common
Stock. The DRS permits each shareholder to maintain the registration of his or
her shares of Common Stock in his or her own name without the need for the
Company to issue, or for the shareholder to maintain or store, a physical
stock certificate. Under the DRS, a shareholder receives an account statement
at least annually from the Transfer Agent for the Common Stock, ChaseMellon
Shareholder Services, LLC (the "Transfer Agent"), indicating the number of
shares in the shareholder's account. Any shareholder who elects to receive a
physical certificate evidencing his or her shares of Common Stock may obtain a
certificate at no charge by contacting the Transfer Agent. The shareholder may
also request that the shares be electronically transferred to the
shareholder's brokerage account.
RIGHTS PLAN
The Board has adopted the Rights Plan under which the Board declared a
dividend of one Right for each outstanding share of Common Stock. Each share
of Common Stock has attached to it (as described below) an associated Right.
Rights are issuable in respect of all shares of Common Stock issued prior to
the earliest of (i) the Rights Distribution Date (as defined below), (ii) the
date on which the Rights are redeemed or exchanged as discussed below or (iii)
September 24, 2007. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series A Preferred Stock, at a
price of $70 (the "Purchase Price"), subject to adjustment. The terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and The Chase Manhattan Bank, as Rights Agent (the "Rights
Agent").
The Rights Agreement provides that, until the Rights Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the shares of Common Stock. The "Rights
Distribution Date" is the earlier to occur of (i) ten days following a public
announcement that a person or group
5
<PAGE>
of affiliated or associated persons (an "Acquiring Person") has acquired
beneficial ownership of 15 percent or more of the outstanding shares of Common
Stock or (ii) ten business days (or such later date as may be determined by
action of the Board prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer, the
consummation of which would result in the beneficial ownership by a person or
group of 15 percent or more of the outstanding shares of Common Stock. As soon
as practicable following the Rights Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of
record of the shares of Common Stock as of the close of business on the Rights
Distribution Date and such separate Rights Certificates alone will evidence
the Rights.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void),
will thereafter have the right to receive upon exercise that number of shares
of Common Stock having a market value of two times the exercise price of the
Right. At any time prior to the time a person or group of affiliated or
associated persons becomes an Acquiring Person, the Board may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). The redemption of the Rights may be made effective at
such time on such basis with such conditions as the Board in its sole
discretion may establish.
If the Rights are not redeemed as provided above and in the event that the
Company is acquired in a merger or other business combination transaction or
50 percent or more of its consolidated assets or earning power are sold after
a person or group has become an Acquiring Person, each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50 percent or more of the
outstanding shares of Common Stock, the Board may exchange the Rights (other
than Rights owned by such person or group which will have become void), in
whole or in part, at an exchange ratio of one share of Common Stock, or one-
hundredth of a share of Series A Preferred Stock, per Right (subject to
adjustment).
Shares of Series A Preferred Stock which are purchasable under the Rights
Plan will not be redeemable. Each Share of Series A Preferred Stock will be
entitled to an aggregate dividend of 100 times the dividend declared per share
of Common Stock, but in no event shall such minimum preferential quarterly
payment be less than $1 per share. In the event of liquidation, the holders of
the shares of Series A Preferred Stock will be entitled to an aggregate
payment of 100 times the payment made per share of Common Stock, but in no
event shall they receive less than $100 per share. Each share of Series A
Preferred Stock will have 100 votes, voting together with the shares of Common
Stock. Finally, in the event of any merger, consolidation, or other
transaction in which shares of Common Stock are exchanged, each share of
Series A Preferred Stock will be entitled to receive 100 times the amount
received per share of Common Stock. These rights are protected by customary
antidilution provisions.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends. While the distribution of the Rights is not
taxable, shareholders may recognize taxable income upon the occurrence of
subsequent events--for example, upon the redemption, sale, or other
disposition of the Rights, or upon the Rights becoming exercisable with
respect to an acquiror's stock whether or not exercised. The Rights will
expire on September 24, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company.
As of the Distribution Date, two subsidiaries of Unitrin, Inc. ("Unitrin")
owned 23.6 percent of the outstanding shares of Common Stock. The Rights Plan
does not affect the Unitrin companies so long as they do not purchase
additional shares of Common Stock or their shares are not transferred to a
third party or group which would thereby beneficially own 15 percent or more
of the outstanding shares of Common Stock.
6
<PAGE>
The terms of the Rights may be amended by the Board without the consent of
the holders of the Rights, including an amendment to lower the 15 percent
thresholds described above to not less than the greater of (i) the sum of .001
percent and the largest percentage of the outstanding Common Stock then known
to the Company to be beneficially owned by any person or group or affiliated
or associated persons (other than Unitrin, Inc. and its subsidiaries) and (ii)
10 percent, except that from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring Person no such amendment
may adversely affect the interest of the holders of the Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired.
This summary description of the Rights does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement, which is
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part.
OTHER PROVISIONS
The Certificate, the By-laws and Delaware law contain certain provisions
that could make more difficult the acquisition of the Company by means of a
tender offer, a proxy contest or otherwise. The description set forth below is
intended as a summary only and is qualified in its entirety by reference to
the Certificate and the By-laws, which are incorporated by reference as
exhibits to the Registration Statement of which this Prospectus is a part.
Classified Board
The Certificate and By-laws provide that the Board will be divided into
three classes of directors, with the classes to be as nearly equal in number
as possible. The Certificate and the By-laws provide that, of the initial
directors of the Company, approximately one-third will continue to serve until
the 1999 Annual Meeting of Shareholders, approximately one-third will continue
to serve until the 2000 Annual Meeting of Shareholders, and approximately one-
third will continue to serve until the 2001 Annual Meeting of Shareholders.
The classification of directors will have the effect of making it more
difficult for shareholders to change the composition of the Board. At least
two annual meetings of shareholders, instead of one, will generally be
required to effect a change in a majority of the Board. Such a delay may help
ensure that the Company's directors, if confronted by a holder attempting to
force a proxy contest, a tender or exchange offer, or an extraordinary
corporate transaction, would have sufficient time to review the proposal as
well as any available alternatives to the proposal and to act in what they
believe to be the best interest of the shareholders. The classification
provisions will apply to every election of directors, however, regardless of
whether a change in the composition of the Board would be beneficial to the
Company and its shareholders and whether or not a majority of the Company's
shareholders believe that such a change would be desirable.
The classification provisions could also have the effect of discouraging a
third party from initiating a proxy contest, making a tender offer or
otherwise attempting to obtain control of the Company, even though such an
attempt might be beneficial to the Company and its shareholders. The
classification of the Board could thus increase the likelihood that incumbent
directors will retain their positions. In addition, because the classification
provisions may discourage accumulations of large blocks of the Company's stock
by purchasers whose objective is to take control of the Company and remove a
majority of the Board, the classification of the Board could tend to reduce
the likelihood of fluctuations in the market price of the Common Stock that
might result from accumulations of large blocks for such a purpose.
Accordingly, shareholders could be deprived of certain opportunities to sell
their shares of Common Stock at a higher market price than might otherwise be
the case.
7
<PAGE>
Number of Directors; Removal; Filling Vacancies
The Certificate provides that, subject to any rights of holders of Preferred
Stock to elect additional directors under specified circumstances, the number
of directors will be fixed from time to time exclusively pursuant to a
resolution adopted by the Board. In addition, the By-laws provide that,
subject to any rights of holders of Preferred Stock, and unless the Board
otherwise determines, any vacancies will be filled only by the affirmative
vote of a majority of the remaining directors, though less than a quorum.
Accordingly, the Board could prevent any shareholder from enlarging the Board
and filling the new directorships with such shareholder's own nominees.
Under Delaware law, unless otherwise provided in the Certificate, directors
serving on a classified board may only be removed by the shareholders for
cause. In addition, the Certificate and the By-laws provide that directors may
be removed only for cause and only upon the affirmative vote of holders of at
least 80 percent of the voting power of all the then outstanding shares of
stock entitled to vote generally in the election of directors ("Voting
Stock"), voting together as a single class.
No Shareholder Action by Written Consent; Special Meetings
The Certificate and the By-laws provide that, subject to the rights of any
holders of Preferred Stock to elect additional directors under specified
circumstances, shareholder action can be taken only at an annual or special
meeting of shareholders and prohibit shareholder action by written consent in
lieu of a meeting. The By-laws provide that special meetings of shareholders
can be called only upon a written request stating the purpose of such meeting
delivered to the Chairman of the Board, the President (if any) or the
Secretary, signed by a majority of the Board or by resolution of the Board or
the Executive Committee (if any). Shareholders are not permitted to call a
special meeting or to require that the Board call a special meeting of
shareholders. Moreover, the business permitted to be conducted at any special
meeting of shareholders is limited to the business brought before the meeting
pursuant to the notice of meeting given by the Company.
The provisions of the Certificate and the By-laws prohibiting shareholder
action by written consent may have the effect of delaying consideration of a
shareholder proposal until the next annual meeting unless a special meeting is
called at the request of a majority of the Board or by resolution of the Board
or the Executive Committee thereof. These provisions would also prevent the
holders of a majority of the voting power of the Voting Stock from
unilaterally using the written consent procedure to take shareholder action
and from taking action by consent. Moreover, a shareholder could not force
shareholder consideration of a proposal over the opposition of the Chairman
and the Board by calling a special meeting of shareholders prior to the time
the Chairman or a majority of the Board believes such consideration to be
appropriate.
Fair Price Provision
Article IX of the Certificate ("Article IX") places certain limitations on
the Company's ability to effect a Business Combination with an Interested
Shareholder (as each such term is defined therein).
Definitions. Article IX confers upon a majority of the Whole Board, or, if a
majority of the Whole Board does not consist of Continuing Directors (as
hereinafter defined), a majority of the then Continuing Directors, the power
and duty to determine, on the basis of information known after reasonable
inquiry, the applicability of certain defined terms used in Article IX as well
as all other facts necessary to determine compliance with Article IX. A
summary of the definitions of certain of these terms follows.
An "Interested Shareholder" is any person (other than the Company or a
subsidiary) who or which is (a) the beneficial owner (as defined below) of ten
percent or more of the voting power of the outstanding Voting Stock, or (b) an
"Affiliate" or an "Associate" (as defined in Article IX) of the Company or at
any time within the two-year period immediately prior to the date in question
was the beneficial owner of 10 percent or more of
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the voting power of the then outstanding Voting Stock, or (c) an assignee of or
has otherwise succeeded to any shares of Voting Stock which were at any time
within the two-year period immediately prior to the date in question
Beneficially Owned (as defined below) by a person described in (a) or (b) above
(other than shares acquired through a public offering). Notwithstanding the
foregoing, neither Unitrin nor any of its subsidiaries will be an Interested
Shareholder as long as such entities in the aggregate beneficially own less
than 12,658,000 shares of Common Stock.
A person is the "beneficial owner" of, or "Beneficially Owns," any shares of
Voting Stock which such person or any of its Affiliates or Associates (as
defined in Article IX) directly or indirectly owns or has the right to acquire
or vote or which are beneficially owned by any member of any group of such
persons having any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
A "Business Combination" includes the following transactions: (a) a merger or
consolidation of the Company or any of its subsidiaries with an Interested
Shareholder or any corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation would be, an
Affiliate of such Interested Shareholder; (b) the sale or other disposition (in
one transaction or a series of transactions) by the Company or any of its
subsidiaries of assets having an aggregate "Fair Market Value" (as defined in
Article IX) of $10 million or more if an Interested Shareholder or any
Affiliate or Associate of an Interested Shareholder is a party to the
transaction; (c) the issuance or transfer (in one transaction or a series of
transactions) of any securities of the Company or of any of its subsidiaries to
an Interested Shareholder or any Affiliate or Associate of an Interested
Shareholder in exchange for cash or property (including stock or other
securities) having an aggregate Fair Market Value of $10 million or more; (d)
the adoption of any plan or proposal for the liquidation or dissolution of the
Company proposed by or on behalf of an Interested Shareholder or any Affiliate
or Associate of an Interested Shareholder; (e) any reclassification of
securities, recapitalization, merger with a subsidiary or other transaction
which has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding stock of any class of the Company or any of its
subsidiaries Beneficially Owned by an Interested Shareholder or any Affiliate
or Associate of an Interested Shareholder.
A "Continuing Director" is any member of the Company's Board, who is not
affiliated with the Interested Shareholder in question and was a director of
the Company prior to the time such Interested Shareholder became an Interested
Shareholder, and any director who is thereafter appointed to fill any vacancy
on the Company's Board or who is elected and who, in either event, is not
affiliated with an Interested Shareholder and in connection with his or her
initial assumption of office was recommended by a majority of the Continuing
Directors then on the Company's Board.
Shareholder Vote Required for Certain Business Combinations. Article IX
requires the approval of the holders of 80 percent of the voting power of all
of the then outstanding shares of the Voting Stock, voting together as a single
class, as a condition to Business Combinations, except in cases in which one of
the two alternatives described under "-- Exceptions to Higher Vote Requirement"
were applicable and were satisfied. In the event that either of such
alternatives were applicable and satisfied with respect to the particular
Business Combination, the affirmative vote otherwise required by Delaware law
and the other provisions of the Certificate and by the terms of any class or
series of stock of the Company which might be outstanding at the time of the
Business Combination would apply. Thus, depending upon the circumstances,
Article IX may require an 80 percent shareholder vote for a Business
Combination in cases in which either a majority vote or no vote would presently
be required under Delaware law.
Even if an Interested Shareholder could obtain an 80 percent affirmative
shareholder vote in favor of a Business Combination under Delaware law, such
Business Combination may nevertheless (depending upon its nature) require
approval by the Company's Board prior to its submission to a shareholder vote
(such would be the case, for instance, with respect to a merger or
consolidation involving the Company). In that case, the Interested Shareholder
could not effect such Business Combination, regardless of its ability to assure
an 80 percent shareholder vote, without Board action. Further, even were an
Interested Shareholder able to obtain votes
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sufficient to effect a repeal of such provisions, it could not, under the
Certificate, exercise its power by written consent or compel the Board to call
a special meeting of shareholders for the purpose of voting on such repeal. As
discussed above, as a result of the classified board provisions in the
Certificate, an interested shareholder could not be assured of gaining control
of the Board until at least two shareholder meetings had been held. In
addition, Section 203 of the Delaware General Corporation Law ("Section 203"),
which restricts second-step mergers with "Interested Shareholders" (and is
described more fully below), might also operate to prevent an Interested
Shareholder from effecting a Business Combination.
Exceptions to Higher Vote Requirement. In the case of a Business Combination
that involved the receipt of cash or other consideration by the Company's
shareholders, solely in their capacity as shareholders, the 80 percent
affirmative shareholder vote requirement would not apply if either (a) the
Business Combination were approved by a majority of the Continuing Directors
of the Company (in order for this condition to be satisfied there must be at
least three Continuing Directors), or (b) all of the requirements described in
paragraphs (1), (2) and (3) below were satisfied.
If the Business Combination did not involve the receipt of consideration by
the Company's shareholders solely as shareholders (e.g., because it took the
form of a sale of assets or an original issuance of the Company's securities
to an Interested Shareholder), only approval by a majority of the Continuing
Directors would avoid the requirement for such 80 percent shareholder vote,
although, as noted above, such Business Combination might, depending upon the
circumstances, otherwise require a lesser or no shareholder vote. If there
were fewer than three Continuing Directors, such Business Combination would
necessarily require such 80 percent shareholder vote. On the other hand,
approval by a majority of the Continuing Directors would, with respect to any
Business Combination, avoid both the 80 percent shareholder vote requirement
and the need to satisfy all of the requirements described below.
As noted above, under Delaware law a particular Business Combination may,
depending upon its nature, require approval of the Board and/or less-than-80-
percent shareholder approval. Neither the approval of such Business
Combination by a majority of the Continuing Directors nor the satisfaction of
the form of consideration, minimum price and procedural requirements of
Article IX with respect to such Business Combination would supersede such
other approval requirements of Delaware law or any class voting requirements
with respect to any series or class of stock of the Company then outstanding.
It also would not supersede the requirements of Section 203, discussed below.
Rather, such approval or satisfaction of such form of consideration, minimum
price and procedural requirements would eliminate only the requirement for the
80 percent shareholder vote otherwise required by Article IX.
In order to avoid the requirement of an 80 percent shareholder vote or
approval by a majority of the Continuing Directors in the case of a Business
Combination that involved the receipt of cash or other consideration by the
Company's shareholders, the following conditions must be met:
(1) Form of Consideration Requirement. The consideration to be received
by holders of a particular class (or series) of capital stock in the
Business Combination would be required to be either cash or the same type
of consideration used by the Interested Shareholder and its Affiliates in
acquiring the largest portion of their interest in such class (or series)
of capital stock. If the Interested Shareholder and its Affiliates have not
previously purchased any shares of such class (or series) of capital stock,
the consideration paid to holders of shares of that class (or series) in
the Business Combination would be required to be cash.
(2) Minimum Price Requirements. The aggregate of (x) the cash and (y) the
Fair Market Value, as of the date of consummation of the Business
Combination (the "Consummation Date"), of any consideration other than cash
to be received per share by holders of Common Stock, in the Business
Combination would have to be at least equal to the higher of (i) the
highest per share price paid by the Interested Shareholder or any of its
Affiliates in acquiring any shares of Common Stock during the two years
immediately prior to the date of the first public announcement of the
proposal of the Business
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Combination (the "Announcement Date") or in any transaction in which the
Interested Shareholder became an Interested Shareholder (whichever is
higher), plus interest compounded annually from the first date on which the
Interested Shareholder became an Interested Shareholder (the "Determination
Date") through the Consummation Date at the publicly announced base rate of
interest of Morgan Guaranty Trust Company of New York, or such other major
bank headquartered in New York, New York, as may be selected by the
Continuing Directors, from time to time in effect in New York, New York,
less the aggregate dividends paid on each share of Common Stock from the
Determination Date through the Consummation Date up to but not exceeding
the amount of interest so payable per share of Common Stock, and (ii) the
Fair Market Value per share of Common Stock on the Announcement Date or the
Determination Date, as the case may be, whichever is higher.
The higher of (i) and (ii) above would have to be paid in respect of all
outstanding shares of Common Stock, whether or not the Interested Shareholder
or any of its Affiliates had previously acquired any shares of Common Stock.
If the Interested Shareholder and its Affiliates did not purchase any shares
of Common Stock, as the case may be, during the two-year period prior to the
Announcement Date or in the transaction in which the Interested Shareholder
became an Interested Shareholder (e.g., if the Interested Shareholder became
an Interested Shareholder by purchasing shares of any then-outstanding class
of voting Preferred Stock), the minimum price would be as determined under
(ii). Under (i), interest and dividends would be computed from the
Determination Date whether the highest price during the two-year period prior
to the Announcement Date were higher than the price paid in the transaction on
the Determination Date or vice versa and whether the Determination Date
occurred before or after the beginning of such two-year period. Thus, for
instance, if the highest price per share paid by the Interested Shareholder
and its Affiliates during such two-year period was higher than the price paid
in the transaction on the Determination Date and the Determination Date
occurred before the beginning of such two-year period, interest and dividends
would nevertheless be required to be computed on such highest price from the
Determination Date. Since (ii) does not include an interest factor, if (ii)
exceeded (i) no interest would be included in computing the per share amount
required to be paid in the Business Combination.
The following example illustrates the application of the form of
consideration and minimum price requirements to a Business Combination with an
Interested Shareholder acting alone which (x) acquired in the open market,
during the two-year period prior to the Announcement Date, 4.9 percent of the
outstanding Common Stock (the only then outstanding class of Voting Stock),
for which its highest per share price was $40, (y) became an Interested
Shareholder by purchasing 45 percent of the outstanding Common Stock in a cash
tender offer at $50 per share, and (z) then announced a proposed Business
Combination with the Company at a time when the Common Stock was trading at
$55 per share:
(i) highest price paid by the Interested Shareholder per share of Common
Stock during the two-year period prior to the Announcement Date ($40) or on
the Determination Date in the transaction in which the Interested
Shareholder became such ($50), whichever is higher (i.e., $50), plus the
net amount (assumed herein to be $2) representing interest (on $50), less
dividends paid or declared (if ultimately paid) per share of Common Stock,
from the Determination Date through the Consummation Date: $52.
(ii) Fair Market Value per share of Common Stock on the Announcement
Date: $55.
Accordingly, in the above example, in order to comply with Article IX's
minimum price requirements, the Interested Shareholder would be required to
pay at least $55 per share (the higher of the two alternatives above) and, in
order to comply with Article IX's form of consideration requirement, such
price would have to be paid in cash.
The per share prices and interest assumptions used in the foregoing example
were selected for illustrative purposes only and are not intended, and should
not be treated, as estimates of future prices of Common Stock or future
interest rates. Such prices and interest rates will be determined in the
marketplace and cannot be predicted.
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As indicated above, no shares of Preferred Stock are outstanding and the
Board has no present plans to issue any such shares, other than the shares
reserved for issuance in connection with the Rights Plan. If shares of any
series of Preferred Stock were in the future issued with voting rights and
were outstanding at the time of consummation of the Business Combination, then
unless such series were excluded from the provisions of Article IX by the
terms of the resolution authorizing such series, the payments to holders of
shares of such series of Preferred Stock would have to be at least equal to
the higher of (x) the highest per share price determined with respect to such
series in the same manner as described above with respect to Common Stock, and
(y) the highest preferential amount per share to which the holders of such
class or series of Preferred Stock would be entitled in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Company. The minimum price requirement would have to be met with respect to
each class or series of outstanding Voting Stock whether or not the Interested
Shareholder was a beneficial owner of shares of that class or series prior to
the Business Combination.
Under the minimum price requirements, the Fair Market Value of non-cash
consideration to be received by holders of shares of any class of Voting Stock
in a Business Combination is to be determined as of the Consummation Date.
Where the definitive terms of such non-cash consideration were established in
advance of the Consummation Date, intervening adverse developments, either in
the economy or the market generally or in the financial condition or business
of the Interested Shareholder, could result in a decline in the originally
anticipated Fair Market Value of such consideration, so that, on the date
scheduled for its consummation, the Business Combination, which had
theretofore been considered as not requiring an 80 percent shareholder vote or
approval by a majority of the Continuing Directors (i.e., because it was
expected to satisfy the minimum price requirements and it satisfied the form
of consideration and procedural requirements), could not be consummated
because it had not received such vote or approval (even if it had received any
less-than-80-percent shareholder vote required by Delaware law, and any
separate class vote required by the terms of any class or series of then-
outstanding stock of the Company) and did not, in fact, meet the minimum price
requirements on such date. However, an Interested Shareholder could avoid such
a situation by establishing, in advance, terms for the Business Combination
whereby the non-cash consideration was to be finalized by reference to its
Fair Market Value on the Consummation Date. Such an approach, which has in
fact been used in connection with mergers and similar second-step transactions
in the past, would ensure that the Interested Shareholder would bear the risk
of a decline in the Fair Market Value of the offered consideration prior to
the consummation of the Business Combination. Article IX uses the Consummation
Date as the determination date of the Fair Market Value of non-cash
consideration to be paid in a Business Combination in order to ensure that the
Interested Shareholder uses this approach so that the Interested Shareholder,
and not the other shareholders, would bear this risk. In addition, since the
minimum price requirements call for a determination to be made with respect to
interest at the base rate compounded, and dividends per share paid, through
the Consummation Date, in a particular case it might not be possible to
determine with certainty whether, at the time a Business Combination was
submitted for shareholder approval, it would ultimately satisfy the minimum
price requirements on the Consummation Date. Accordingly, it might not be
possible to determine with certainty whether the Business Combination would
require an 80 percent shareholder vote or the lesser vote otherwise applicable
under Delaware law and, until the Consummation Date, there might be
uncertainty as to whether the Business Combination, if it in fact received
less than an 80 percent affirmative shareholder vote, could be consummated
under Article IX. This uncertainty could deter an Interested Shareholder who
did not own (and was not assured of obtaining the affirmative votes of) 80
percent of the voting power of the Voting Stock from going forward with a
Business Combination that had not been approved by a majority of the
Continuing Directors. However, the Company considers that it is appropriate,
for the reasons indicated above, to use the Consummation Date as the
determination date with respect to the minimum price requirements of Article
IX and that this will benefit shareholders by encouraging the Interested
Shareholder to negotiate with the Continuing Directors (and to refrain from
taking action which would result in there being fewer than three Continuing
Directors) and obtain their approval of the Business Combination, since such
approval would avoid the applicability of both the 80 percent shareholder
approval requirement and the minimum price requirement.
(3) Procedural Requirements. In order to avoid the requirement of an 80
percent affirmative shareholder vote or approval by a majority of the
Continuing Directors, after an Interested Shareholder
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became an Interested Shareholder and prior to the Consummation Date, all of
the following procedural requirements, as well as the form of consideration
and minimum price requirements, must be complied with.
The first procedural requirement would be that the Company, after the
Determination Date, not have failed to pay full quarterly dividends on any
then-outstanding Preferred Stock and not have reduced the rate of dividends
paid on Common Stock, unless such failure or reduction was approved by a
majority of the Continuing Directors. This provision is designed to prevent an
Interested Shareholder from attempting to depress the market price of the
Voting Stock prior to proposing a Business Combination by reducing dividends
thereon, and thereby reducing the consideration required to be paid pursuant
to the minimum price requirements of Article IX.
The second procedural requirement would be that the Interested Shareholder
and its Affiliates not have acquired any additional shares of the Voting
Stock, directly from Company, or otherwise, in any transaction subsequent to
the transaction pursuant to which the Interested Shareholder became an
Interested Shareholder (other than any such acquisition pursuant to a stock
split or similar transaction that does not increase the Interested
Shareholder's proportionate share of any class or series of stock of the
Company). This provision is intended to prevent an Interested Shareholder from
purchasing additional shares of Voting Stock at prices which are lower than
those set by the minimum price requirements of Article IX. Since all of the
forms of consideration, minimum price and procedural requirements must be
satisfied in order for the Interested Shareholder to avoid the need for either
an 80 percent affirmative shareholder vote or the approval of a majority of
any Continuing Directors, an effect of this provision, where the Interested
Shareholder or any of its Affiliates acquired additional shares of Voting
Stock after the Interested Shareholder became an Interested Shareholder, is
that the Interested Shareholder could only acquire all of the Voting Stock by
means of a Business Combination if such Business Combination either satisfied
the 80 percent shareholder approval requirements or were approved by a
majority of the Continuing Directors.
The third procedural requirement would be that the Interested Shareholder
and its Affiliates not have received, at any time after the Interested
Shareholder became an Interested Shareholder, whether in connection with the
Business Combination or otherwise, the benefit of any loans or other financial
assistance or tax advantages provided by the Company (other than
proportionately, solely in its capacity as a shareholder). This provision is
intended to deter an Interested Shareholder from self-dealing or otherwise
taking advantage of its equity position in the Company by using the Company's
resources to finance the Business Combination or otherwise for its own
purposes in a manner not proportionately available to all shareholders.
The fourth procedural requirement would be that a proxy or information
statement disclosing the terms and conditions of the Business Combination and
complying with the requirements of the proxy rules promulgated under the
Exchange Act or any replacement legislation be mailed to all shareholders of
the Company at least 30 days prior to the consummation of the Business
Combination, whether or not such proxy or information statement is required to
be mailed pursuant to the Exchange Act or any such replacement legislation.
This provision is intended to ensure that shareholders will be fully informed
of the terms and conditions of the Business Combinations even if the
Interested Shareholder were not otherwise required by law to disclose such
information to shareholders.
The final procedural requirements would be that the Interested Shareholder
have supplied the Company with all information requested by the Continuing
Directors pursuant to Article IX. Under Article IX, the Continuing Directors
have the right to request information as to the beneficial ownership of stock
by the Interested Shareholder and other factual matters relating to the
applicability and effect of Article IX.
Advance Notice Provisions for Shareholder Nominations and Shareholder
Proposals
The By-laws establish an advance notice procedure for shareholders to make
nominations of candidates for election as directors, or bring other business
before an annual meeting of shareholders of the Company (the "Shareholder
Notice Procedure").
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The Shareholder Notice Procedure provides that only persons who are
nominated by, or at the direction of, the Board, or by a shareholder who has
given timely written notice to the Secretary of the Company prior to the
meeting at which directors are to be elected, will be eligible for election as
directors of the Company. The Shareholder Notice Procedure provides that at an
annual meeting only such business may be conducted as has been brought before
the meeting by, or at the direction of, the Chairman or the Board or by a
shareholder who has given timely written notice to the Secretary of the
Company of such shareholder's intention to bring such business before such
meeting. Under the Shareholder Notice Procedure, for notice of shareholder
nominations to be made at an annual meeting to be timely, such notice must be
received by the Company not less than 70 days nor more than 90 days prior to
the first anniversary of the previous year's annual meeting (or if the date of
the annual meeting is advanced by more than 20 days, or delayed by more than
70 days, from such anniversary date, not earlier than the 90th day prior to
such meeting and not later than the later of (x) the 70th day prior to such
meeting and (y) the 10th day after public announcement of the date of such
meeting is first made). Notwithstanding the foregoing, in the event that the
number of directors to be elected is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board made by the Company at least 80 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's notice
will be timely, but only with respect to nominees for any new positions
created by such increase, if it is received by the Company not later than the
10th day after such public announcement is first made by the Company. Under
the Shareholder Notice Procedure, for notice of a shareholder nomination to be
made at a special meeting at which directors are to be elected to be timely,
such notice must be received by the Company not earlier than the 90th day
before such meeting and not later than the later of (x) the 70th day prior to
such meeting and (y) the 10th day after public announcement of the date of
such meeting is first made.
Under the Shareholder Notice Procedure, a shareholder's notice to the
Company proposing to nominate a person for election as a director must contain
certain information, including, without limitation, the identity and address
of the nominating shareholder, the class and number of shares of stock of the
Company which are owned by such shareholder, and all information regarding the
proposed nominee that would be required to be included in a proxy statement
soliciting proxies for the proposed nominee. Under the Shareholder Notice
Procedure, a shareholder's notice relating to the conduct of business other
than the nomination of directors must contain certain information about such
business and about the principal shareholders, including, without limitation,
a brief description of the business the shareholder proposes to bring before
the meeting, the reasons for conducting such business at such meeting, the
name and address of such shareholder, the class and number of shares of stock
of the Company beneficially owned by such shareholder, and any material
interest of such shareholder in the business so proposed. If the Chairman of
the Board or other officer presiding at a meeting determines that a person was
not nominated, or other business was not brought before the meeting, in
accordance with the Shareholder Notice Procedure, such person will not be
eligible for election as a director, or such business will not be conducted at
such as the case may be.
By requiring advance notice of nominations by shareholders, the Shareholder
Notice Procedure will afford the Board an opportunity to consider the
qualifications of the proposed nominees and, to the extent deemed necessary or
desirable by the Board, to inform shareholders about such qualifications. By
requiring advance notice of other proposed business, the Shareholder Notice
Procedure will also provide a more orderly procedure for conducting annual
meetings of shareholders and, to the extent deemed necessary or desirable by
the Board, will provide the Board with an opportunity to inform shareholders,
prior to such meetings, of any business proposed to be conducted at such
meetings, together with any recommendations as to the Board's position
regarding action to be taken with respect to such business, so that
shareholders can better decide whether to attend such a meeting or to grant a
proxy regarding the disposition of any such business.
Although the By-laws do not give the Board any power to approve or
disapprove shareholder nominations for the election of directors or proposals
for action, they may have the effect of precluding a contest for the election
of directors or the consideration of shareholder proposals if the proper
procedures are not followed, and of discouraging or deterring a third party
from conducting a solicitation of proxies to elect its own slate of directors
or to approve its own proposal, without regard to whether consideration of
such nominees or proposals might be harmful or beneficial to the Company and
its shareholders.
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AMENDMENT OF CERTAIN PROVISIONS OF THE CERTIFICATE AND BY-LAWS
Under Delaware law, the shareholders have the right to adopt, amend or
repeal the by-laws and, with the approval of the board of directors, the
certificate of incorporation of a corporation. In addition, if the certificate
of incorporation so provides, the by-laws may be adopted, amended or repealed
by the board of directors. The Certificate provides that the affirmative vote
of the holders of at least 80 percent of the voting power of the outstanding
shares of voting stock, voting together as a single class, is required to
amend provisions of the Certificate relating to the prohibition of shareholder
action without a meeting; the number, election and term of the Company's
directors; or the removal of directors. The vote of the holders of a majority
of the voting power of the outstanding shares of voting stock is required to
amend all other provisions of the Certificate. The Certificate further
provides that the By-laws may be amended by the Board or by the affirmative
vote of the holders of at least 80 percent of the voting power of the
outstanding shares of voting stock, voting together as a single class. These
80 percent voting requirements will have the effect of making more difficult
any amendment by shareholders of the By-laws or of any of the provisions of
the Certificate described above, even if a majority of the Company's
shareholders believe that such amendment would be in their best interests.
ANTITAKEOVER LEGISLATION
Section 203 provides that, subject to certain exceptions specified therein,
a corporation shall not engage in any business combination with any
"interested shareholder" for a three-year period following the date that such
shareholder becomes an interested shareholder unless (i) prior to such date,
the board of directors of the corporation approved either the business
combination or the transaction which resulted in the shareholder becoming an
interested shareholder, (ii) upon consummation of the transaction which
resulted in the shareholder becoming an interested shareholder, the interested
shareholder owned at least 85 percent of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding certain shares),
or (iii) on or subsequent to such date, the business combination is approved
by the board of directors of the corporation and by the affirmative vote of at
least 66 2/3 percent of the outstanding voting stock which is not owned by the
interested shareholder. Except as specified in Section 203, an interested
shareholder is defined to include (x) any person that is the owner of 15
percent or more of the outstanding voting stock of the corporation, or is an
affiliate or associate of the corporation and was the owner of 15 percent or
more of the outstanding voting stock of the corporation, at any time within
three years immediately prior to the relevant date and (y) the affiliates and
associates of any such person.
Under certain circumstances, Section 203 makes it more difficult for a
person who would be an "interested shareholder" to effect various business
combinations with a corporation for a three-year period, although the
shareholders may elect to exclude a corporation from the restrictions imposed
thereunder. The Certificate does not exclude the Company from the restrictions
imposed under Section 203 of the Delaware Law. It is anticipated that the
provisions of Section 203 may encourage companies interested in acquiring the
Company to negotiate in advance with the Board, since the shareholder approval
requirement would be avoided if a majority of the directors then in office
approve, prior to the time the shareholder becomes an interested shareholder,
either the business combination or the transaction which results in the
shareholder becoming an interested shareholder.
RELATIONSHIP OF ARTICLE IX TO SECTION 203
Each of Article IX and Section 203 should encourage persons interested in
acquiring the Company to negotiate in advance with the Board since the higher
shareholder voting requirements imposed would not be invoked if, (i) in the
case of Article IX, such person obtains the approval of a majority of the
Continuing Directors for the proposed business combination transaction, and
(ii) in the case of Section 203, such person, prior to acquiring 15 percent of
the Company's voting stock, obtains the approval of the Board for such stock
acquisition or for the proposed business combination transaction (unless such
person acquires 85 percent or more of the Company's voting stock in such
transaction excluding certain shares as described above). As stated above, in
the event of a proposed acquisition of the Company, the Board believes that
the interests of the Company's shareholders will best be served by a
transaction that results from negotiations based upon careful consideration of
the proposed terms, such as the price to be paid to minority shareholders, the
form of consideration paid and tax effects of the transaction.
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The protection afforded the remaining shareholders by Section 203 is
stronger in some respects than the protection that would be afforded by
Article IX in situations in which the provisions of both apply. This is
because, unless the requisite Board or shareholder approval is obtained or the
acquiror succeeds in obtaining at least 85% of the target corporation's voting
stock in the initial transaction, Section 203 would prevent any of the
specified business combination transactions which could be used by an acquiror
to eliminate such remaining shareholders, use the assets of the company to
finance its acquisition or otherwise abuse its equity position from occurring
for a period of three years thereafter, whereas Article IX would merely
require that the specified minimum price and procedural conditions be
satisfied. Nonetheless, Article IX has been included in the Certificate for
several reasons.
First, the term "Business Combination" is defined differently in Article IX
than it is in Section 203 and, as a result, Article IX may afford protection
to the Company's shareholders in certain situations in which Section 203 would
not apply. In addition, Article IX would apply to transactions with or for the
benefit of any person (together with such person's affiliates and associates)
beneficially owning 10 percent of the Company's voting stock while Section 203
would only apply to transactions involving persons (together with their
affiliates and associates) beneficially owning 15 percent or more of the
Company's voting stock.
Second, although the constitutionality of Section 203 has so far been upheld
in the courts, it is possible that a higher court might yet find Section 203
to be unconstitutional. If Section 203 were to be challenged and struck down
as unconstitutional prior to or in connection with any acquisition of the
Company, Article IX would continue to afford its protections to shareholders.
Neither Article IX nor Section 203 will prevent a hostile takeover of the
Company. They may, however, make more difficult or discourage a takeover of
the Company or the acquisition of control of the Company by a significant
shareholder and thus the removal of incumbent management. Such effect will be
enhanced by the fact that the Company will have a Rights Plan. Some
shareholders may find this disadvantageous in that they may not be afforded
the opportunity to participate in takeovers which are not approved by the
Continuing Directors but in which they might receive, for at least some of
their shares, a substantial premium above the market price at the time of a
tender offer or other acquisition transaction. Article IX should not prevent
or discourage transactions in which the acquiring person is willing to
negotiate in good faith with the Board and is prepared to pay the same price
to all shareholders of each class of the Company's voting stock.
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DESCRIPTION OF PREFERRED STOCK
The following summary of the Preferred Stock does not purport to be complete
and is qualified in its entirety by reference to the Certificate or the
applicable Certificate of Designations of Preferred Stock (each a "Preferred
Stock Designation"), the form of which is filed as, or will be incorporated by
reference as, an exhibit to the Registration Statement of which this
Prospectus is a part in connection with the issuance of such series of
Preferred Stock.
The following summary of the Preferred Stock relates to certain terms and
conditions applicable to the Preferred Stock as a class. The particular terms
of any series of Preferred Stock will be described in the applicable
Prospectus Supplement. If so indicated in such Prospectus Supplement, the
terms of any such series may differ from the terms set forth below.
GENERAL
The Certificate authorizes the Board to establish one or more series of
Preferred Stock and to determine, with respect to any series of Preferred
Stock, the terms and rights of such series, including (i) the designation of
the series, (ii) the number of shares of the series, which number the Board
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding), (iii) whether dividends, if any, will be cumulative or
noncumulative and the dividend rate of the series, (iv) the dates at which
dividends, if any, will be payable, (v) the redemption rights and price or
prices, if any, for shares of the series, (vi) the terms and amounts of any
sinking fund provided for the purchase or redemption of shares of the series,
(vii) the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company, (viii) whether the shares of the series will be convertible
into shares of any other class or series, or any other security, of the
Company or any other corporation, and, if so, the specification of such other
class or series or such other security, the conversion price or prices or rate
or rates, any adjustments thereof, the date or dates as of which such shares
shall be convertible and all other terms and conditions upon which such
conversion may be made, (ix) restrictions on the issuance of shares of the
same series or of any other class or series, and (x) the voting rights, if
any, of the holders of such series.
The authorized shares of Preferred Stock, as well as shares of Common Stock,
will be available for issuance without further action by the Company's
shareholders, unless such action is required by applicable law or the rules of
any stock exchange or automated quotation system on which the Company's
securities may be listed or traded. The NYSE currently requires shareholder
approval as a prerequisite to listing shares in several instances, including
where the present or potential issuance of shares could result in an increase
in the number of shares of common stock, or in the amount of voting securities
outstanding, of at least 20 percent. If the approval of the Company's
shareholders is not required for the issuance of shares of Preferred Stock or
Common Stock, the Board may determine not to seek shareholder approval.
Each series of Preferred Stock will have the dividend, liquidation,
redemption and voting rights set forth below unless otherwise described in an
applicable Prospectus Supplement relating to such series of Preferred Stock.
The applicable Prospectus Supplement will describe the following terms of the
series of Preferred Stock in respect of which this Prospectus is being
delivered: (1) the designation of such series and the number of shares
offered; (2) the amount of the liquidation preference per share (or the method
of calculation of such amount); (3) the initial public offering price at which
shares of such series will be issued; (4) the dividend rate (or the method of
calculation of such rate) applicable to such series, the dates on which
dividends will be payable and the dates from which dividends will commence to
cumulate, if any; (5) any redemption or sinking fund provisions; (6) any
conversion or exchange rights; (7) any additional voting and other rights,
preferences, privileges, qualifications, limitations and restrictions, if any;
(8) any listing of such series on any securities exchange; (9) the relative
ranking and preferences of such series as to dividend rights and rights upon
any liquidation, dissolution or winding up of the affairs of the Company; and
(10) any other terms of such series.
No shares of Preferred Stock are currently outstanding. Shares of Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. The liquidation preference of
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any series of Preferred Stock is not indicative of the price at which shares
of such series of Preferred Stock will actually trade on or after the date of
issuance.
Although the Board has no intention at the present time of doing so, it
could issue a series of Preferred Stock that could, depending on the terms of
such series, impede the completion of a merger, tender offer or other takeover
attempt. The Board will make any determination to issue such shares based on
its judgment as to the best interests of the Company and its shareholders. The
Board, in so acting, could issue Preferred Stock having terms that could
discourage an acquisition attempt through which an acquirer may be able to
change the composition of the Board, including a tender offer or other
transaction that some, or a majority, of the Company's shareholders might
believe to be in their best interests or in which shareholders might receive a
premium for their stock over the then current market price of such stock.
RANK
Each series of Preferred Stock will, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Company, rank prior
or superior to the Common Stock. All shares of each series of Preferred Stock
will be of equal rank with each other. Subject to the foregoing and the terms
of any particular series of Preferred Stock, series of Preferred Stock may
vary as to priority within that class.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive, when,
as and if declared by the Board out of funds of the Company legally available
for payment, cash dividends, payable at such date or dates and at such rate or
rates per share as described in the applicable Prospectus Supplement. Such
rate or rates may be fixed or variable or both.
Unless otherwise specified in the applicable Prospectus Supplement,
dividends shall be cumulative and the dividends on such shares will accrue
from and after the date set forth in the applicable Prospectus Supplement. If
dividends on a series of Preferred Stock are noncumulative and if the Board
fails to declare a dividend in respect of a dividend period with respect to
such series, then holders of such Preferred Stock will have no right to
receive a dividend in respect of such dividend period, and the Company will
have no obligation to pay the dividend for such period, whether or not
dividends are declared with respect to any future dividend payment dates.
No full dividends may be declared or paid or set apart for payment on
Preferred Stock of the Company of any series ranking, as to dividends, on a
parity with or junior to the series of Preferred Stock offered by the
applicable Prospectus Supplement for any period unless full dividends for the
immediately preceding dividend period on such series of Preferred Stock
(including any accumulation in respect of unpaid dividends for prior dividend
periods, unless otherwise specified in the applicable Prospectus Supplement)
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment. When
dividends are not so paid in full (or a sum sufficient for such full payment
is not so set apart) upon such series of Preferred Stock and any other series
of Preferred Stock of the Company ranking on a parity, as to dividends, with
such series of Preferred Stock, dividends upon such series of Preferred Stock
and dividends on such other series of Preferred Stock ranking on a parity with
such series of Preferred Stock will be declared pro rata so that the amount of
dividends declared per share on such series of Preferred Stock and such other
series of Preferred Stock ranking on a parity with such series of Preferred
Stock will in all cases bear to each other the same ratio that accrued
dividends for the then-current dividend period per share on such series of
Preferred Stock (including any accumulation in respect of unpaid dividends for
prior dividend periods, unless otherwise specified in the applicable
Prospectus Supplement) and accrued dividends, including required or permitted
accumulations, if any, on shares of such other series of Preferred Stock, bear
to each other. No interest, or sum of money in lieu of interest, will be
payable in respect of any dividend payment on such series Preferred Stock that
may be in arrears. Unless full dividends on the series of series of Preferred
Stock offered by the applicable Prospectus Supplement have been declared and
paid or set apart for payment for the immediately
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preceding dividend period (including any accumulation in respect of unpaid
dividends for prior dividend periods, unless otherwise specified in the
applicable Prospectus Supplement), (a) no cash dividend or distribution (other
than in shares of stock ranking junior to such series of Preferred Stock) may
be declared, set aside for payment or paid on junior stock (including Common
Stock), (b) the Company may not, directly or indirectly, repurchase, redeem or
otherwise acquire any shares of junior stock (or pay any monies into a sinking
fund for the redemption of any such shares) except by conversion into or
exchange for junior stock, and (c) the Company may not, directly or
indirectly, repurchase, redeem or otherwise acquire any series of Preferred
Stock ranking on parity as to dividends (or pay any monies into a sinking fund
for the redemption of any shares of any such stock) otherwise than pursuant to
pro rata offers to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding Preferred Stock and any other series of Preferred
Stock of the Company ranking on parity as to dividends (except by conversion
into or exchange for junior stock).
Any dividend payment made on a series of Preferred Stock will first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series that remains payable.
REDEMPTION
The terms, if any, on which Preferred Stock of any series may be redeemed
will be set forth in the applicable Prospectus Supplement. All shares of
Preferred Stock redeemed, purchased or otherwise acquired by the Company
(including shares surrendered for conversion or exchange) shall be canceled
and thereupon restored to the status of authorized but unissued shares of
Preferred Stock, undesignated as to series.
LIQUIDATION
In the event of a liquidation, dissolution or winding up of the affairs of
the Company, voluntary or involuntary, the holders of a series of Preferred
Stock will be entitled, subject to the rights of creditors, but before any
distribution or payment to the holders of Common Stock or any other junior
stock, to receive a liquidating distribution in the amount of the liquidation
preference per share as set forth in the applicable Prospectus Supplement,
plus accrued and unpaid dividends for the then-current dividend period
(including any accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on such series are cumulative, unless otherwise
specified in the applicable Prospectus Supplement). If the amounts available
for distribution upon liquidation, dissolution or winding up of the affairs of
the Company are not sufficient to satisfy the full liquidation rights of all
the outstanding Preferred Stock and all stock ranking on a parity with such
Preferred Stock, then the holders of each series of such stock will share
ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of Preferred Stock may
include accumulated dividends) to which they are entitled. After payment of
the full amount of the liquidation preference, the holders of Preferred Stock
will not be entitled to any further participation in any distribution of
assets by the Company.
VOTING
Unless otherwise specified in the applicable Prospectus Supplement, each
series of Preferred Stock shall have no voting rights except in the event that
an amount equal to six quarterly dividend payments on such series of Preferred
Stock shall have accrued and be unpaid. In such event, the holders of each
series of Preferred Stock shall have the right to one vote per share, voting
separately as a class together with holders of shares of any series of
Preferred Stock upon which like voting rights have been conferred and are
exercisable ("Voting Parity Stock"), to elect two members of the Board of
Directors, each member to be in addition to the then authorized number of
directors, at the next annual meeting of stockholders and thereafter until
dividends on such series of Preferred Stock have been paid in full for four
consecutive dividend periods, including the last preceding period. Such
directors shall hold office for a term expiring (subject to the earlier
payment, or declaration and setting aside for payment, of dividends on such
series of Preferred Stock for four consecutive dividend periods) at the next
annual meeting of stockholders. Additionally, unless specified in the
applicable prospectus supplement, without the affirmative vote of the holders
of two-thirds of the shares of a series of Preferred Stock issued by the
Company then outstanding (voting separately as a class together with any
Voting Parity Stock), the Company
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may not, either directly or indirectly or through merger or consolidation with
any other corporation, (i) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock ranking prior to
the shares of Preferred Stock in rights or preferences or (ii) approve any
amendment of (or otherwise alter or repeal), the Certificate or the applicable
Preferred Stock Designation which would materially and adversely change the
specific terms of such series of Preferred Stock. An amendment which increases
the number of authorized shares of or authorizes the creation or issuance of
other classes or series of Preferred Stock ranking junior to or on a parity
with a series of Preferred Stock with respect to the payment of dividends or
distribution of assets upon liquidation, dissolution or winding up, or
substitutes the surviving entity in a merger, consolidation, reorganization or
other business combination for the Company, shall not be considered to be such
an adverse change.
As more fully described under "Description of Depositary Shares" below, if
the Company elects to issue Depositary Shares, each representing a fraction of
a share of a series of the Preferred Stock, each such Depositary Share will,
in effect, be entitled to such fraction of a vote per Depositary Share.
CONVERSION OR EXCHANGE
The terms, if any, on which Preferred Stock of any series may be converted
into or exchanged for another class or series of Securities will be set forth
in the applicable Prospectus Supplement.
OTHER RIGHTS
The shares of a series of Preferred Stock may have such preferences, voting
powers or relative, participating, optional or other special rights as may be
set forth in the applicable Prospectus Supplement, the Certificate (including
the applicable Preferred Stock Designation) or as otherwise required by law.
The holders of Preferred Stock will not have any preemptive rights to
subscribe to any securities of the Company.
TITLE
The Company, the transfer agent and registrar for a series of Preferred
Stock, and any agent of the Company or the transfer agent and registrar may
treat the registered owner of such Preferred Stock as the absolute owner
thereof (whether or not any payment in respect of such Preferred Stock shall
be overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. See "Book-Entry Securities" below.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred Stock will be
named in the applicable Prospectus Supplement.
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DESCRIPTION OF DEPOSITARY SHARES
The following summary of each Deposit Agreement, the Depositary Shares and
the Depositary Receipts (each as defined below) does not purport to be
complete and is qualified in its entirety by reference to the Deposit
Agreement and Depositary Receipts with respect to the Depositary Shares
relating to any particular series of Preferred Stock, the forms of which are
filed as, or will be incorporated by reference as, exhibits to the
Registration Statement of which this Prospectus is a part in connection with
the issuance of such Depositary Shares.
The following summary of the Deposit Agreement, the Depositary Shares and
the Depositary Receipts relates to certain terms and conditions applicable to
such Securities generally. The particular terms of any series of Depositary
Shares will be described in the applicable Prospectus Supplement. If so
indicated in such Prospectus Supplement, the terms of any such series may
differ from the terms set forth below.
GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. If the
Company elects to do so, it will provide for the issuance by a Depositary (as
described below) to the public of receipts for Depositary Shares, each of
which will represent a fractional interest (to be set forth in the applicable
Prospectus Supplement) of a share of Preferred Stock.
The shares of any series of the Preferred Stock underlying any Depositary
Shares will be deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company with respect to such series, having its principal office in the United
States and having a combined capital and surplus of at least $50,000,000 (with
respect to such series, the "Depositary"). The applicable Prospectus
Supplement relating to a series of Depositary Shares will set forth the name
and address of the Depositary. Subject to the terms of the applicable Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of the Preferred Stock
underlying such Depositary Share, to all the rights and preferences of such
Preferred Stock (including dividend, voting, redemption, conversion, exchange
and liquidation rights).
Depositary Shares will be evidenced by depositary receipts issued pursuant
to the applicable Deposit Agreement (the "Depositary Receipts").
Pending the preparation of definitive engraved Depositary Receipts, a
Depositary may, upon the Company's written order, issue temporary Depositary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive Depositary Receipts but not in
definitive form. Definitive Depositary Receipts will be prepared without
unreasonable delay, and the temporary Depositary Receipts will be exchangeable
for definitive Depositary Receipts at the Company's expense and without charge
thereof.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received by the Depositary in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such Preferred Stock pro
rata in proportion to the numbers of such Depositary Shares owned by such
holders on the relevant record date; provided, however, that in the case the
Company or Depositary shall be required to withhold any cash dividend or other
cash distribution on account of taxes, the amount made available for
distribution shall be reduced accordingly. The Depositary will distribute only
such amount, however, as can be distributed without attributing to any holder
of Depositary Shares a fraction of one cent, and any balance not so
distributed will be added to and treated as part of the next succeeding
distribution to record holders of such Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the Company's
approval, adopt such method as
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it deems equitable and practicable for the purpose of effecting such
distribution, including the sale of such property and the distribution of the
net proceeds from such sale to such holders.
Each Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders
of the Preferred Stock of the applicable series will be made available to
holders of Depositary Shares.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office, to or upon such holder's order, of the
number of whole shares of the related series of Preferred Stock and any money
and other property, if any, represented by such Depositary Shares. Holders of
Depositary Shares will be entitled to receive whole shares of the related
series of Preferred Stock on the basis set forth in the applicable Prospectus
Supplement, but holders of such whole shares of such Preferred Stock will not
thereafter be entitled to receive Depositary Shares in exchange therefor. If
the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of the related series of Preferred Stock or Series
A Junior Preferred Stock to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
The terms, if any, on which the Depositary Shares relating to the Preferred
Stock of any series may be redeemed will be set forth in the applicable
Prospectus Supplement.
VOTING THE UNDERLYING SECURITIES
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock of any series are entitled to vote, the applicable Depositary will mail
the information contained in such notice of meeting to the record holders of
the Depositary Shares relating to such series of Preferred Stock. Each record
holder of such Depositary Shares on the record date (which will be the same
date as the record date for the Preferred Stock) will be entitled to instruct
the Depositary as to the exercise of the voting rights pertaining to the
number of shares of Preferred Stock underlying such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the
number of whole shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
action that may be deemed necessary by the Depositary in order to enable the
Depositary to do so. To the extent the Depositary does not receive specific
instructions from the holders of Depositary Shares relating to such Preferred
Stock, it will abstain from voting such shares of Preferred Stock, unless
otherwise indicated by the holders of such Depositary Shares.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the applicable Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary. However, any amendment that
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. A Deposit Agreement may be terminated by the Company or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or otherwise reacquired by the Company, (ii) all Preferred Stock
has been withdrawn or (iii) there has been a final distribution in respect of
the Preferred Stock of the applicable series in connection with any
liquidation, dissolution or winding up of the Company and such distribution
has been distributed to the holders of the related Depositary Shares.
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CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of any depositary arrangements. The Company
will pay all charges of each Depositary in connection with the initial deposit
of the Preferred Stock of any series and any redemption of such Preferred
Stock. Holders of Depositary Shares will be required to pay any other transfer
and other taxes and governmental charges and such other charges as are
expressly provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
Each Depositary will forward to the holders of the applicable Depositary
Shares all reports and communications from the Company that are delivered to
such Depositary and that the Company is required to furnish the holders of the
Preferred Stock of the applicable series.
Neither any Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under any Deposit Agreement. The obligations of the Company and
each Depositary under any Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless indemnity satisfactory to them is furnished. They
may rely upon written advice of counsel or accountants, or information
provided by persons presenting Preferred Stock for deposit, holders of
Depositary Shares or other persons believed by it to be competent and on
documents believed by them to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
A Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove a Depositary,
and such resignation or removal will take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
TITLE
The Company, each Depositary and any agent of the Company or the applicable
Depositary may treat the registered owner of any Depositary Share as the
absolute owner thereof (whether or not any payment in respect of such
Depositary Share shall be overdue and notwithstanding any notice to the
contrary) for the purpose of making payment and for all other purposes. See
"Book-Entry Securities" below.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The following summary of the Indentures (as defined below) and the Debt
Securities (as defined below) does not purport to be complete and is qualified
in its entirety by reference to the applicable Indenture pursuant to which
such Debt Securities are issued, which Indentures are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
The following summary of the Indentures and the Debt Securities relates to
certain terms and conditions applicable to the Debt Securities generally. The
particular terms of any series of Debt Securities will be described in the
applicable Prospectus Supplement. If so indicated in such Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below.
Senior Debt Securities (the "Senior Debt Securities") are to be issued under
an Indenture (the "Senior Indenture"), to be entered into by the Company and
The First National Bank of Chicago, as Trustee (the "Senior Trustee").
Subordinated Debt Securities (the "Subordinated Debt Securities" and, together
with the Senior Debt Securities, "Debt Securities") are to be issued under an
Indenture (the "Subordinated Indenture" and, together with the Senior
Indenture, the "Indentures") to be entered into by the Company and The Bank of
New York, as Trustee (the "Subordinated Trustee," and together with the Senior
Trustee, the "Trustees"). The following summaries of certain provisions of the
Senior Debt Securities, the Subordinated Debt Securities, the Senior Indenture
and the Subordinated Indenture, as modified or superseded by the applicable
Prospectus Supplement, are brief summaries of certain provisions thereof, 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 applicable to a
particular series of Debt Securities (the "Applicable Indenture"), including
the definitions therein of certain terms. Whenever particular provisions or
defined terms in one or both of the Indentures are referred to, such
provisions or defined terms are incorporated herein by reference. Section
references used herein are references to the Applicable Indenture. Capitalized
terms not otherwise defined herein shall have the meaning given to them in the
Applicable Indenture.
The Indentures do not limit the amount of Debt Securities that may be issued
thereunder and Debt Securities may be issued thereunder from time to time in
one or more series. (Section 310) The Senior Debt Securities will be unsecured
and unsubordinated obligations of the Company. Because the Company is a
holding company, the right of the Company to participate in any distribution
of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of the creditors of
such subsidiary, except to the extent the Company may itself be recognized as
a creditor of such subsidiary. Accordingly the Debt Securities will be
effectively subordinated to all existing and future liabilities of the
Company's subsidiaries. In addition to such amount, the principal subsidiaries
of the Company have guaranteed the Company's obligations under its $400
million committed credit facility. The Indentures also do not preclude the
Company's subsidiaries from incurring additional indebtedness.
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Debt Securities will be
payable, and the transfer of Debt Securities will be registrable, at the
office or agency to be maintained by the Company in The City of New York and
at any other office or agency maintained by the Company for such purpose.
(Sections 301, 305 and 1002) The Debt Securities will be issued only in fully
registered form without coupons and, unless otherwise indicated in the
applicable Prospectus Supplement, in denominations of $1,000 or integral
multiples thereof. (Section 302) As described under "Book-Entry Securities"
below, the Debt Securities of a series may be issued in the form of one or
more Book-Entry Securities ("Book-Entry Securities") that will be deposited
with or on behalf of a Depositary, which will be a clearing agent registered
under the Exchange Act. No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith. (Section 305)
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities offered thereby (the "Offered Debt Securities"):
(1) the title of the Offered Debt Securities; (2) any limit on the
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aggregate principal amount of the Offered Debt Securities; (3) the person or
entity to whom any interest on the Offered Debt Securities shall be payable,
if other than the person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest; (4) the date or dates on which the principal of
and premium, if any, on the Offered Debt Securities is payable or the method
of determination thereof; (5) the rate or rates at which the Offered Debt
Securities shall bear interest, if any, or the method of calculating such rate
or rates of interest, the date or dates from which any such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for interest payable on any Interest Payment Date; (6) the
place or places where the principal of, premium, if any, and interest on the
Offered Debt Securities shall be payable; (7) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency units) in which and the other terms and conditions upon which the
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem or purchase
the Offered Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the period or periods
within which, the price or prices at which and the other terms and conditions
upon which the Offered Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; (9) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which the
Offered Debt Securities shall be issuable; (10) the currency, currencies or
currency units in which payment of the principal of and any premium and
interest on any Offered Debt Securities shall be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America; (11) if
the amount of payments of principal of or any premium or interest on any
Offered Debt Securities may be determined with reference to an index, formula
or other method, the index, formula or other method by which such amounts
shall be determined; (12) if the principal of or any premium or interest on
any Offered Debt Securities is to be payable, at the election of the Company
or a holder thereof, in one or more currencies or currency units other than
that or those in which the Debt Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal of
and any premium and interest on the Offered Debt Securities as to which such
election is made shall be payable, and the periods within which and the other
terms and conditions upon which such election is to be made; (13) if other
than the principal amount thereof, the portion of the principal amount of the
Offered Debt Securities which shall be payable upon declaration of
acceleration of the maturity thereof or the method by which such portion may
be determined; (14) the applicability of the provisions described under "--
Defeasance of Offered Debt Securities or Certain Covenants in Certain
Circumstances"; (15) if the Offered Debt Securities will be issuable only in
the form of a Book-Entry Security as described under "--Book-Entry Debt
Securities", the Depositary or its nominee with respect to the Offered Debt
Securities and the circumstances under which the Book-Entry Security may be
registered for transfer or exchange or authenticated and delivered in the name
of a person or entity other than the Depositary or its nominee; (16) any
additional, modified or different covenants applicable to the Offered Debt
Securities; (17) in the case of the Subordinated Indenture, the applicability
of the provisions described in "Conversion or Exchange"; and (18) any other
terms of the Offered Debt Securities. (Section 301)
The Debt Securities may be issued under the Indentures as Original Issue
Discount Debt Securities to be offered and sold at a substantial discount
below their stated principal amount. Special Federal income tax, accounting
and other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto. "Original Issue Discount Debt
Security" means any Debt Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default. (Section 101)
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units, if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, material U.S. Federal income tax considerations and other
information with respect to such issue of Debt Securities and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
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If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Debt Securities,
material U.S. Federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
SUBORDINATION OF THE SUBORDINATED DEBT SECURITIES
The payment of the principal of and premium, if any, and interest on, and
any payments on the repurchase of, Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture, be subordinated in right of
payment to the prior payment in full of all Senior Debt (as defined below).
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of the Company, the holders of all Senior Debt will first be
entitled to receive payment in full of all amounts due or to become due
thereon before the holders of Subordinated Debt Securities will be entitled to
receive any payment in respect of the principal of or premium, if any, or
interest on, or repurchase of, the Subordinated Debt Securities. In the event
of the acceleration of the maturity of any Subordinated Debt Securities, the
holders of all Senior Debt will first be entitled to receive payment in full
of all amounts due or to become due thereon before the holders of the
Subordinated Debt Securities will be entitled to receive any payment upon the
principal of or premium, if any, or interest on, or repurchase of, the
Subordinated Debt Securities. No payments on account of principal, premium, if
any, interest, or any repurchase in respect of Subordinated Debt Securities
may be made if there shall have occurred and be continuing a default in any
payment with respect to Senior Debt, or an event of default with respect to
any Senior Debt permitting the holders thereof to accelerate the maturity
thereof. (Article Thirteen of the Subordinated Indenture)
By reason of such subordination, in the event of insolvency, creditors of
the Company who are not holders of Senior Debt or of Subordinated Debt
Securities may recover less, ratably, than holders of Senior Debt and may
recover more, ratably, than the holders of Subordinated Debt Securities.
"Senior Debt" is defined to mean without duplication, the principal, premium
(if any) and unpaid interest on all present and future (i) indebtedness of the
Company for borrowed money, (ii) obligations of the Company evidenced by
bonds, debentures, notes or similar instruments, (iii) indebtedness incurred,
assumed or guaranteed by the Company in connection with the acquisition by it
or a Subsidiary of any business, properties or assets (except purchase-money
indebtedness classified as accounts payable under generally accepted
accounting principles), (iv) obligations of the Company as lessee under leases
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles, (v) reimbursement obligations of the Company
in respect of letters of credit relating to indebtedness or other obligations
of the Company that qualify as indebtedness or obligations of the kind
referred to in clauses (i) through (iv) above, and (vi) obligations of the
Company under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (v) above, in each case
unless in the instrument creating or evidencing the indebtedness or obligation
or pursuant to which the same is outstanding it is provided that such
indebtedness or obligation is not superior in right of payment to Senior Debt
Securities. (Section 101 of the Subordinated Indenture)
The applicable Prospectus Supplement may further describe the provisions, if
any, applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CONVERSION OR EXCHANGE
To the extent indicated in the applicable Prospectus Supplement, the
Subordinated Debt Securities of any series may be convertible or exchangeable
into other Debt Securities or Common Stock, Preferred Stock or Depositary
Shares. The specific terms on which Subordinated Debt Securities of any series
may be so converted or exchanged will be set forth in the applicable
Prospectus Supplement. Such terms may include provisions for
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conversion or exchange, either mandatory, at the option of the holder, or at
the option of the Company, in which case the amount or number of Securities to
be received by the holders of Subordinated Debt Securities would be calculated
as of a time and in the manner stated in the applicable Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY APPLICABLE TO SENIOR DEBT SECURITIES
Limitation on Liens
Unless otherwise indicated in the applicable Prospectus Supplement, the
holders of Senior Debt Securities (but not Subordinated Debt Securities) will
have the benefit of the "Limitation on Liens" covenant described below. The
"Limitation on Liens" covenant provides that the Company will not, and will
not permit any Restricted Subsidiary (as defined below) to, create, incur,
issue, assume or guarantee any indebtedness for money borrowed ("Debt")
secured by a Mortgage (as defined below) upon any Operating Property (as
defined below), or upon shares of capital stock or Debt issued by any
Restricted Subsidiary and owned by the Company or any Restricted Subsidiary,
whether owned at the date of the Senior Indenture or thereafter acquired,
without effectively providing concurrently that the Senior Debt Securities of
each series then outstanding are secured equally and ratably with or, at the
option of the Company, prior to such Debt so long as such Debt shall be so
secured.
The foregoing restriction shall not apply to, and there shall be excluded
from Debt in any computation under such restriction, Debt secured by (i)
Mortgages on any property existing at the time of the acquisition thereof;
(ii) Mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
provided that any such Mortgage does not extend to any property owned by the
Company or any Restricted Subsidiary immediately prior to such merger,
consolidation, sale, lease or disposition; (iii) Mortgages on property of a
corporation existing at the time such corporation becomes a Restricted
Subsidiary; (iv) Mortgages in favor of the Company or a Restricted Subsidiary;
(v) Mortgages to secure all or part of the cost of acquisition, construction,
development or improvement of the underlying property, or to secure Debt
incurred to provide funds for any such purpose, provided that the commitment
of the creditor to extend the credit secured by any such Mortgage shall have
been obtained not later than 365 days after the later of (a) the completion of
the acquisition, construction, development or improvement of such property or
(b) the placing in operation of such property; (vi) Mortgages in favor of the
United States of America or any State thereof, or any department, agency or
instrumentality or political subdivision thereof, to secure partial, progress,
advance or other payments; and (vii) Mortgages existing on the date of the
Senior Indenture or any extension, renewal, replacement or refunding of any
Debt secured by a Mortgage existing on the date of the Senior Indenture or
referred to in clauses (i) to (iii) or (v), provided that the principal amount
of Debt secured thereby and not otherwise authorized by clauses (i) to (iii)
or (v) shall not exceed the principal amount of Debt, plus any premium or fee
payable in connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal, replacement or
refunding. (Section 1008 of the Senior Indenture)
Notwithstanding the restrictions described above, the Company and its
Restricted Subsidiaries may create, incur, issue, assume or guarantee Debt
secured by Mortgages without equally and ratably securing the Senior Debt
Securities of each series then outstanding if, at the time of such creation,
incurrence, issuance, assumption or guarantee, after giving effect thereto and
to the retirement of any Debt which is concurrently being retired, the
aggregate amount of all outstanding Debt secured by Mortgages which would
otherwise be subject to such restrictions (other than any Debt secured by
Mortgages permitted as described in clauses (i) through (vii) of the
immediately preceding paragraph) plus all Attributable Debt in respect of Sale
and Leaseback Transactions (as defined below) with respect to Operating
Properties (with the exception of such transactions which are permitted under
clauses (i) through (iv) of the second sentence under "--Limitation on Sale
and Leaseback Transactions" below) does not exceed the greater of (i) 10% of
Consolidated Net Assets (as defined below) and (ii) $150 million.
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Limitation on Sale and Leaseback Transactions
Unless otherwise indicated in the applicable Prospectus Supplement, the
holders of Senior Debt Securities (but not Subordinated Debt Securities) will
have the benefit of the "Limitation on Sale and Leaseback Transactions"
covenant described below. The "Limitation on Sale and Leaseback Transactions"
covenant provides that the Company will not, and will not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any Operating Property unless: (i) the Sale and Leaseback
Transaction is solely with the Company or another Restricted Subsidiary; (ii)
the lease is for a period not in excess of twenty- four months, including
renewals; (iii) the Company or such Restricted Subsidiary would (at the time
of entering into such arrangement) be entitled as described in clauses (i)
through (vii) of the second preceding paragraph, without equally and ratably
securing the Senior Debt Securities of each series then outstanding, to
create, incur, issue, assume or guarantee Debt secured by a Mortgage on such
Operating Property in the amount of the Attributable Debt arising from such
Sale and Leaseback Transaction; (iv) the Company or such Restricted
Subsidiary, within 365 days after the sale of such Operating Property in
connection with such Sale and Leaseback Transaction is completed, applies an
amount equal to the greater of (A) the net proceeds of the sale of such
Operating Property or (B) the fair market value of such Operating Property to
(1) the retirement of Debt Securities, other Funded Debt (as defined below) of
the Company ranking on a parity with the Senior Debt Securities or Funded Debt
of a Restricted Subsidiary or (2) the purchase of Operating Property; or (v)
the Attributable Debt of the Company and its Restricted Subsidiaries in
respect of such Sale and Leaseback Transaction and all other Sale and
Leaseback Transactions entered into after the date of the Senior Indenture
(other than any such Sale and Leaseback Transactions as would be permitted as
described in clauses (i) through (iv) of this sentence), plus the aggregate
principal amount of Debt secured by Mortgages on Operating Properties then
outstanding (not including any such Debt secured by Mortgages described in
clauses (i) through (vii) of the second preceding paragraph) which do not
equally and ratably secure such outstanding Senior Debt Securities (or secure
such outstanding Senior Debt Securities on a basis that is prior to other Debt
secured thereby), would not exceed the greater of (i) 10% of Consolidated Net
Assets and (ii) $150 million.
Certain Definitions
"Attributable Debt," in respect of any Sale and Leaseback Transaction,
means, as of the time of determination, the total obligation (discounted to
present value at the rate per annum equal to the discount rate which would be
applicable to a capital lease obligation with like term in accordance with
generally accepted accounting principles) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
initial term of the lease included in such Sale and Leaseback Transaction.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower), and (ii) all Investments in Unrestricted Subsidiaries, all as set
forth on the most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting principles.
"Funded Debt" means all Debt having a maturity of more than 12 months from
the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendable beyond 12 months
from such date at the option of the borrower, but excluding any such Debt owed
to the Company or a Restricted Subsidiary.
"Mortgage" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or
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nature whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Operating Property" means any real property or equipment located within the
United States and owned by, or leased to, the Company or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 1.0% of Consolidated Net Assets.
"Restricted Subsidiary" means any Subsidiary of the Company that owns any
Operating Property.
"Sale and Leaseback Transaction" means any arrangement with any person
providing for the leasing to the Company or any Subsidiary of any Operating
Property, which Operating Property has been or is to be sold or transferred by
the Company or such Subsidiary to such person.
"Subsidiary" 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 the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is not a
Restricted Subsidiary.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Indentures do not limit the amount of Debt that may be incurred by the Company
or its Subsidiaries or contain covenants specifically designed to protect
holders of Debt Securities in the event of a highly leveraged transaction,
restructuring, change in control, merger or similar transaction involving the
Company that may adversely affect holders of Debt Securities.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indentures with respect to Debt Securities of any series: (a) failure to
pay any interest on any Debt Security of that series when due, continued for
30 days; (b) failure to pay principal of or any premium on any Debt Security
of that series when due; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform,
or breach of, any covenant or warranty of the Company in the Indenture with
respect to Debt Securities of that series continued for 90 days after written
notice as provided in the Indenture; (e) a default under any indebtedness for
money borrowed by the Company or any Subsidiary if (A) such default either (1)
results from the failure to pay the principal of any such indebtedness at its
stated maturity or (2) relates to an obligation other than the obligation to
pay the principal of such indebtedness at its stated maturity and results in
such indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, (B) the principal amount
of such indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at stated maturity or the
maturity of which has been so accelerated, aggregates $50 million or more at
any one time outstanding and (C) such indebtedness is not discharged, or such
acceleration is not rescinded or annulled, within 30 days after written notice
as provided in the Indenture; (f) certain events of bankruptcy, insolvency or
reorganization of the Company; or (g) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501)
If an Event of Default (other than an Event of Default described in clause
(f) of the preceding paragraph) with respect to the Debt Securities of any
series at the time Outstanding shall occur and be continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series may accelerate the maturity of all
Debt Securities of that series; provided, however, that after such
acceleration, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
such acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been
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cured or waived as provided in the Applicable Indenture. If an Event of
Default described in clause (f) of the immediately preceding paragraph occurs,
the Outstanding Debt Securities will ipso facto become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. (Section 502)
Reference is made to the applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Debt
Securities for the particular provisions relating to acceleration of the
Stated Maturity of a portion of the principal amount of such series of
Original Issue Discount Debt Securities upon the occurrence of an Event of
Default and the continuation thereof.
Each Indenture provides that, subject to the duty of the Trustee under such
Indenture during default to act with the required standard of care, such
Trustee will be under no obligation to exercise any of its rights or powers
under such Indenture at the request or direction of any of the holders of Debt
Securities, unless such holders shall have offered to the Trustee reasonable
indemnity. (Section 603) Subject to such provisions for the indemnification of
the Trustee and to certain other conditions, the holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee under the Applicable
Indenture, or exercising any trust or power conferred on such Trustee, with
respect to the Debt Securities of that series. (Section 512)
No holder of Debt Securities of any series will have any right to institute
any proceeding with respect to the Applicable Indenture or for any remedy
thereunder, unless such holder shall have previously given to the Trustee
under such Indenture written notice of a continuing Event of Default and
unless the holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series shall have made written request, and offered
reasonable indemnity, to such Trustee to institute such proceeding as trustee,
and such Trustee shall not have received from the holders of a majority in
aggregate 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. (Section 507) However, such limitations do not
apply to a suit instituted by a holder of Debt Securities for enforcement of
payment of the principal of and premium, if any, or interest on such Debt
Securities on or after the respective due dates expressed in such Debt
Securities. (Section 508)
The Company is required to furnish to the Trustee under each Indenture
annually a statement as to the performance by the Company of certain of its
obligations under such Indenture and as to any default in such performance.
(Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company
and the respective Trustees without the consent of the holders of any of the
Debt Securities in order (i) to evidence the succession of another entity to
the Company and the assumption of the covenants and obligations of the Company
under the Debt Securities and the Indentures by such successor to the Company;
(ii) to add to the covenants of the Company for the benefit of the holders of
all or any series of Debt Securities or to surrender any right or power
conferred on the Company by the Indentures; (iii) to add additional Events of
Default with respect to any series of Debt Securities; (iv) to add to or
change any provisions to such extent as may be necessary to permit or
facilitate the issuance of Debt Securities in bearer form or to facilitate the
issuance of Book-Entry Securities; (v) to add to, change or eliminate any
provision affecting only Debt Securities not yet issued; (vi) to secure the
Debt Securities; (vii) to establish the form or terms of Debt Securities of
any series; (viii) to evidence and provide for successor Trustees or to add or
change any provisions to such extent as may be necessary to provide for or
facilitate the appointment of a separate Trustee or Trustees for specific
series of Debt Securities; (ix) to permit payment in respect of Debt
Securities in bearer form or coupons in the United States to the extent
allowed by law; (x) to cure any ambiguity, to correct or supplement any
mistaken or inconsistent provisions or to make any other provisions with
respect to matters or questions arising under the Indentures, provided that
any such action does not adversely affect in any material respect the
interests of any holder of Debt Securities of any series then outstanding
under the Applicable Indenture. (Section 901)
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Modifications and amendments of each Indenture also may be made by the
Company and the Trustee under such Indenture with the consent of the holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of each series issued under such Indenture and adversely affected
by the modification or amendments; provided, however, that no such
modification or amendment may, without the consent of the holders of all Debt
Securities under such Indenture affected thereby, (i) change the Stated
Maturity of the principal amount of, or any installment of principal of or
interest on, any Debt Security; (ii) reduce the principal amount of, or the
premium, if any, or (except as otherwise provided in the applicable Prospectus
Supplement) interest on any Debt Security (including in the case of an
Original Issue Discount Debt Security the amount payable upon acceleration of
the maturity thereof); (iii) change the place or currency of payment of
principal of, premium, if any, or interest on any Debt Security; (iv) impair
the right to institute suit for the enforcement of any payment on any Debt
Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); (v) adversely affect any right
of the holders to require the Company to repurchase Debt Securities; (vi) in
the case of Subordinated Debt Securities, adversely affect any right to
convert such Debt Securities or modify the subordination provisions in a
manner adverse to the holders of the Debt Securities in any material respect;
or (vii) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose holders is required for
modification or amendment of the Applicable Indenture or for waiver of
compliance with certain provisions of the Applicable Indenture or for waiver
of certain defaults. (Section 902)
The holders of at least a majority in principal amount of the Outstanding
Debt Securities of any series may, on behalf of all holders of Debt Securities
of that series, waive compliance by the Company with certain restrictive
provisions of the Applicable Indenture. (Section 1010) The holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of any series may, on behalf of all holders of Debt Securities of
that series, waive any past default under the Applicable Indenture, except a
default in the payment of principal, premium, if any, or interest or in
respect of a covenant or provision of the Applicable Indenture that cannot be
modified or amended without the consent of the holder of each Outstanding Debt
Security of such series affected thereby. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that the Company may not consolidate with or merge
with or into any other entity or transfer or lease its assets substantially as
an entirety to any entity, unless (i) either the Company is the continuing
corporation, or any successor or purchaser is a corporation, partnership or
trust validly organized under the laws of the United States of America, any
State thereof or the District of Columbia, and any such successor or purchaser
expressly assumes the Company's obligations on the Debt Securities under a
supplemental indenture, (ii) immediately after giving effect to the
transaction, no Event of Default thereunder, and no event which, after notice
or lapse of time or both, would become an Event of Default thereunder, shall
have occurred and be continuing, (iii) in the case of the Senior Indenture, if
properties or assets of the Company become subject to a Mortgage not permitted
by the Senior Indenture, the Company or such successor entity, as the case may
be, takes such steps as shall be necessary effectively to secure the Senior
Debt Securities equally and ratably with (or prior to) all Debt secured
thereby, and (iv) if a supplemental indenture is to be executed in connection
with such consolidation, merger, transfer or lease, the Company has delivered
to the Trustee under such Indenture an officers' certificate and an opinion of
counsel stating compliance with these provisions. (Section 801)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN
CIRCUMSTANCES
Defeasance and Discharge
The Indentures provide that the terms of any series of Debt Securities may
provide that the Company, at the Company's option, will be discharged from any
and all obligations in respect of the Debt Securities of such series (except
for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace stolen, destroyed, lost or mutilated
Debt Securities of such series, to maintain paying agencies and to hold moneys
for payment in trust) upon the deposit with the applicable Trustee, in trust,
of money and/or U.S.
31
<PAGE>
Government Obligations which, through the payment of interest and principal
thereof in accordance with their terms, will provide money in an amount
sufficient to pay any installment of principal, premium, if any, and interest
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 Applicable Indenture and such Debt Securities. Such discharge may
only occur if, among other things, the Company has delivered to the Trustee an
opinion of counsel to the effect that the Company has received from, or there
has been published by, the United States Internal Revenue Service a ruling, or
there has been a change in tax law, in either case to the effect that such
discharge will not be deemed, or result in, a taxable event with respect to
holders of the Debt Securities of such series. (Sections 1302 and 1304 of the
Senior Indenture and Sections 1502 and 1504 of the Subordinated Indenture)
Defeasance of Certain Covenants Applicable to the Senior Debt Securities
The Senior Indenture provides that the terms of any series of Senior Debt
Securities may provide the Company with the option to be released from certain
restrictive covenants described in this Prospectus under "--Certain Covenants
of the Company Applicable to Senior Debt Securities--Limitations on Liens",
"--Certain Covenants of the Company Applicable to Senior Debt Securities--
Limitation on Sale and Leaseback Transactions" and the Indentures provide that
the terms of any series of Debt Securities may provide the Company with the
option to be released from the restrictive covenant described in the
Prospectus under "--Consolidation, Merger and Sale of Assets". The Company, in
order to exercise such option, will be required to deposit with the Trustee
money and/or U.S. Government Obligations which, through the payment of
interest and principal thereof in accordance with their terms, will provide
money in an amount sufficient to pay principal, premium, if any, and interest
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 Applicable Indenture and such Debt Securities. The Company will
also be required to deliver to the applicable Trustee an opinion of counsel to
the effect that the deposit and related covenant defeasance will not cause the
holders of the Debt Securities of such series to recognize income, gain or
loss for federal income tax purposes. (Sections 1303 and 1304 of the Senior
Indenture and Sections 1503 and 1504 of the Subordinated Indenture)
In the event the Company exercises this option 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 U.S. Government Obligations on
deposit with the applicable 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.
The applicable Prospectus Supplement will state if any defeasance provisions
will apply to the Offered Debt Securities.
TRUSTEES
The First National Bank of Chicago is the Trustee under the Senior Indenture
and The Bank of New York is the Trustee under the Subordinated Indenture. Each
Trustee may resign or be removed with respect to one or more series of Debt
Securities under the Applicable Indenture and a successor Trustee may be
appointed to act with respect to such series. (Section 610). In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a Trustee of a trust under the
related Indenture separate and apart from the trust administered by any other
such Trustee (Section 611), and any action described herein to be taken by the
"Trustee" may then be taken by each such Trustee with respect to, and only
with respect to, the one or more series of Securities for which it is Trustee.
32
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DESCRIPTION OF WARRANTS
The following summary of each Warrant Agreement, the Warrants and the
Warrant Certificates (as defined below) does not purport to be complete and is
qualified in its entirety by reference to the Warrant Agreement with respect
to the Warrants of any particular series, which are or will be incorporated by
reference as exhibits to the Registration Statement of which this Prospectus
is a part in connection with the issuance of such Warrants.
The following summary of the Warrant Agreements, the Warrants and the
Warrant Certificates relates to certain terms and conditions applicable to the
Warrants generally. The particular terms of any series of Warrants will be
described in the applicable Prospectus Supplement. If so indicated in such
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
GENERAL
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock, Depositary Shares or Common Stock. Warrants may be issued
independently or together with Debt Securities, Preferred Stock, Depositary
Shares or Common Stock, and may be attached to or separate from such
Securities.
Each series of Warrants will be evidenced by certificates (the "Warrant
Certificates") issued pursuant to a separate Warrant Agreement to be entered
into between the Company and a bank selected by the Company with respect to
such series, having its principal office in the United States and having
combined capital and surplus of at least $50,000,000 (with respect to such
series, the "Warrant Agreement"). The applicable Prospectus Supplement
relating to a series of Warrants will set forth the name and address of the
Warrant Agent.
The applicable Prospectus Supplement will describe the terms of the series
of Warrants in respect of which this Prospectus is being delivered, including:
(1) the offering price; (2) the currency for which such Warrants may be
purchased; (3) if applicable, the designation and terms of the Securities with
which the Warrants are issued and the number of Warrants issued with each such
Security or each principal amount of such Security; (4) if applicable, the
date on and after which the Warrants and the related Securities will be
separately transferable; (5) in the case of Warrants to purchase Debt
Securities, the principal amount of Debt Securities purchasable upon exercise
of one Warrant and the price at and currency in which such principal amount of
Debt Securities may be purchased upon such exercise and, in the case of
Warrants to purchase Preferred Stock, Depositary Shares or Common Stock, the
number of Depositary Shares or shares of Preferred Stock or Common Stock, as
the case may be, purchasable upon the exercise of one Warrant and the price at
which such shares may be purchased upon such exercise; (6) the date on which
the right to exercise the Warrants will commence and the date on which such
right or rights will expire (the "Expiration Date"); (7) certain federal
income tax consequences of holding or exercising such Warrants; (8) the terms
of the Securities issuable upon exercise of such Warrants; and (9) any other
terms of the Warrants.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations, may be presented for registration of transfer, and
may be exercised at the corporate trust office of the Warrant Agent or any
other office indicated in the applicable Prospectus Supplement. If the
Warrants are not separately transferrable from the Securities with which they
were issued, such exchange may take place only in connection with an exchange
of the certificates representing such related Securities. Prior to the
exercise of their Warrants, holders of Warrants will not have any of the
rights of holders of the Securities purchasable upon such exercise, including,
in the case of Warrants to purchase Debt Securities, the right to receive
payments of principal of, premium, if any, or interest, if any, on the Debt
Securities purchasable upon such exercise or to enforce covenants in the
applicable Indenture or, in the case of Warrants to purchase Preferred Stock,
Depositary Shares or Common Stock, the right to receive dividends, if any, or
payments upon the liquidation, dissolution or winding up of the Company or to
exercise voting rights, if any.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase the Securities specified in
the applicable Prospectus Supplement at the exercise price set forth in, or
calculated as described in, the applicable Prospectus Supplement.
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Unless otherwise specified in the applicable Prospectus Supplement, Warrants
may be exercised at any time up to 5:00 P.M. New York time on the Expiration
Date set forth in such Prospectus Supplement. After the close of business on
the Expiration Date, unexercised Warrants will become void.
Warrants may be exercised by delivery of the Warrant Certificate
representing the Warrants to be exercised together with certain information,
and payment to the Warrant Agent in immediately available funds, as provided
in the applicable Prospectus Supplement of the amount required to purchase the
Securities purchasable upon such exercise. The information required to be
delivered will be set forth on the reverse side of the Warrant Certificate and
in the applicable Prospectus Supplement. Upon receipt of such payment and the
Warrant Certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, in the time period
provided by the applicable Warrant Agreement, issue and deliver the Securities
purchasable upon such exercise. If fewer than all of the Warrants represented
by such Warrant Certificate are exercised, a new Warrant Certificate will be
issued for the remaining amount of Warrants.
If so indicated in the applicable Prospectus Supplement, Securities may be
surrendered as all or part of the exercise price for Warrants.
ANTIDILUTION PROVISIONS
In the case of Warrants to purchase Common Stock, the exercise price payable
and the number of shares of Common Stock purchasable upon the exercise of each
Warrant will be subject to adjustment in certain events. No fractional shares
will be issued upon exercise of Warrants, but the Company will pay cash value
of any fractional shares otherwise issuable.
MODIFICATION
Any Warrant Agreement and the terms of the related Warrants may be amended
by the Company and the applicable Warrant Agent by executing a supplemental
warrant agreement (a "Supplemental Agreement"), without the consent of the
holders of any such Warrants, for the purpose of (i) curing any ambiguity, or
curing, correcting or supplementing any defective or inconsistent provision
contained therein, or making any other provisions with respect to matters or
questions arising under the Warrant Agreement that is not inconsistent with
the provisions of the Warrant Agreement or the Warrant Certificates, (ii)
evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
such Warrant Agreement and the Warrants, (iii) appointing a successor Warrant
Agent, (iv) evidencing and providing for the acceptance of appointment by a
successor Warrant Agent with respect to the Warrants, (v) adding to the
covenants of the Company for the benefit of the holders of such Warrants or
surrendering any right or power conferred upon the Company under the Warrant
Agreement, (vi) issuing Warrants in definitive form, if such Warrants are
initially issued in the form of Global Securities, or (vii) amending the
Warrant Agreement and the Warrants in any manner that the Company may deem to
be necessary or desirable and that will not adversely affect the interests of
the holders of such Warrants in any material respect.
The Company and the Warrant Agent may also amend any Warrant Agreement and
the terms of the related Warrants by executing a Supplemental Agreement with
the consent of the holders of not less than a majority in number of the
unexercised Warrants affected by such amendment, for the purpose of adding any
provisions to or modifying in any manner or eliminating any of the provisions
of such Warrant Agreement or of modifying in any manner the rights of the
holders of such Warrants, except that no such amendment that (i) changes the
number or amount of Securities purchasable upon exercise of such Warrants so
as to reduce the number or amount of Securities receivable upon such exercise,
(ii) shortens the period of time during which the Warrants may be exercised,
(iii) otherwise adversely affects the exercise rights of the holders of such
Warrants in any material respect, or (iv) reduces the number of unexercised
Warrants the consent of holders of which is required for amendment of the
Warrant Agreement or the related Warrants, may be made without the consent of
each holder affected thereby.
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<PAGE>
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Warrant Agreement will provide that the Company may consolidate or
merge with or into any other Company or sell, lease, transfer or convey all or
substantially all of its assets to any other Company, provided that (i) either
the Company must be the continuing corporation, or the corporation (if other
than the Company) that is formed by or results from any such consolidation or
merger or that receives such assets must be a corporation organized and
existing under the laws of the United States of America or a state thereof and
must assume the obligations of the Company with respect to all the unexercised
Warrants and the performance and observance of all of the covenants and
conditions of the applicable Warrant Agreement to be performed or observed by
the Company and (ii) the Company or such successor corporation, as the case
may be, must not immediately be in default under such Warrant Agreement.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each Warrant Agent will act solely as the agent of the Company under the
applicable Warrant Agreement and will not assume any obligation or
relationship of agency or trust for or with any holder of any Warrant. A
single bank or trust company may act as Warrant Agent for more than one issue
of Warrants. A Warrant Agent will have no duty or responsibility in case of
any default by the Company in the performance of its obligations under the
applicable Warrant Agreement or Warrant including, without limitation, any
duty or responsibility to initiate any proceedings at law or otherwise or to
make any demand upon the Company. Any holder of a Warrant may, without the
consent of the related Warrant Agent or the holder of any other Warrant,
enforce by appropriate legal action, in and for its own behalf, its right to
exercise, and receive the Securities purchasable upon exercise of, its
Warrants.
RESIGNATION AND APPOINTMENT OF WARRANT AGENT
A Warrant Agent shall be provided by the Company until all the Warrants
issued have been exercised or expired in accordance with their terms. The
Warrant Agent may resign at any time by giving the Company notice of its
election and the Company may at any time remove a Warrant Agent, and such
resignation or removal shall take effect upon the appointment of a successor
Warrant Agent and its acceptance of such appointment. The Warrant Agent and
any successor Warrant Agent shall be a bank or trust company having its office
or agent's office in the United States and having a combined capital and
surplus of at least $50,000,000.
TITLE
The Company, the Warrant Agents and any agent of the Company or the
applicable Warrant Agent may treat the registered holder of any Warrant
Certificate as the absolute owner of the Warrants evidenced thereby
(notwithstanding any notice to the contrary) for any purpose and as the person
entitled to exercise the rights attaching to the Warrants requested thereby,
any notice to the contrary notwithstanding. See "Book-Entry Securities" below.
35
<PAGE>
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement,
Securities other than Common Stock will be issued in the form of one or more
book-entry certificates (collectively, with respect to each series or issue of
Securities, the "Book-Entry Security") registered in the name of a depositary
or a nominee of a depositary. Unless otherwise specified in the applicable
Prospectus Supplement, the depositary will be The Depository Trust Company
("DTC"). The Company has been informed by DTC that its nominee will be Cede &
Co. ("Cede"). Accordingly, Cede is expected to be the initial registered
holder of all Securities that are issued in book-entry form. No person that
acquires a beneficial interest in such Securities will be entitled to receive
a certificate representing such person's interest in the Securities except as
set forth herein or in the applicable Prospectus Supplement. Unless and until
definitive Securities are issued under the limited circumstances described
below, all references to actions by holders of Securities issued in book-entry
form shall refer to actions taken by DTC upon instructions from its
Participants (as defined below), and all references herein to payments and
notices to holders shall refer to payments and notices to DTC or Cede, as the
registered holder of such Securities.
DTC has informed the Company that it is a limited purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing company" within the meaning of the New York Uniform Commercial Code
and a "clearing agency" registered pursuant to Section 17A of the Exchange
Act, and that it was created to hold securities for its participating
organizations ("Participants") and to facilitate the clearance and settlement
of securities transactions among Participants through electronic book-entry,
thereby eliminating the need for physical movement of certificates.
Participants include securities brokers and dealers, banks, trust companies
and clearing corporations, and may include certain other organizations.
Indirect access to the DTC system also is 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
("Indirect Participants").
Persons that are not Participants or Indirect Participants but desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
Securities may do so only through Participants and Indirect Participants.
Under a book-entry format, Holders may experience some delay in their receipt
of payments, as such payments will be forwarded by the agent designated by the
Company to Cede, as nominee for DTC. DTC will forward such payments to its
Participants, which thereafter will forward them to Indirect Participants or
Holders. Holders will not be recognized by the applicable registrar, transfer
agent, Trustee, Depositary or Warrant Agent as registered holders of the
Securities entitled to the benefits of the Certificate or the applicable
Indenture, Deposit Agreement or Warrant Agreement. Beneficial owners that are
not Participants will be permitted to exercise their rights as such only
indirectly through and subject to the procedures of Participants and, if
applicable, Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Securities among Participants and to receive and
transmit payments to Participants. Participants and Indirect Participants with
which beneficial owners of Securities have accounts with respect to the
Securities similarly are required by the Rules to make book-entry transfers
and receive and transmit such payments on behalf of their respective account
holders.
Because DTC can act only on behalf of Participants, who in turn act only on
behalf of Participants or Indirect Participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of Securities issued in book-entry form to pledge such
Securities to persons or entities that do not participate in the DTC system,
or to otherwise act with respect to such Securities, may be limited due to the
unavailability of physical certificates for such Securities.
DTC has advised the Company that DTC will take any action permitted to be
taken by a registered holder of any Securities under the Certificate or the
applicable Indenture, Deposit Agreement or Warrant Agreement only at the
direction of one or more Participants to whose accounts with DTC such
Securities are credited.
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<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement, a Book-
Entry Security will be exchangeable for the relevant definitive Securities
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies the Company that it is unwilling or unable to continue as
depository for such Book-Entry Security or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act at a time when DTC is
required to be so registered in order to act as such depository, (ii) the
Company executes and delivers to the applicable registrar, transfer agent,
Trustee, Depositary and/or Warrant Agent an order complying with the
requirements of the Certificate or the applicable Indenture, Deposit Agreement
and/or Warrant Agreement that such Book-Entry Security shall be so
exchangeable or (iii) there has occurred and is continuing a default in the
payment of any amount due in respect of the Securities or, in the case of Debt
Securities, an Event of Default or an event that, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to
such Debt Securities. Any Book-Entry Security that is exchangeable pursuant to
the preceding sentence will be exchangeable for Securities registered in such
names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Securities. Upon surrender by DTC of
the Book-Entry Security representing the Securities and delivery of
instructions for re-registration, the registrar, transfer agent, Trustee,
Depositary or Warrant Agent, as the case may be, will reissue the Securities
as definitive Securities, and thereafter such persons will recognize the
holders of such definitive Securities as registered holders of Securities
entitled to the benefits of the Certificate or the applicable Indenture,
Deposit Agreement and/or Warrant Agreement.
Except as described above a Book-Entry Security may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or to a successor depositary appointed by the Company.
Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a Book-Entry Security evidencing all or part
of any Securities unless such beneficial interest is in an amount equal to an
authorized denomination for such Securities.
None of the Company, the Trustees, any registrar and transfer agent, any
Warrant Agent or any Depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any Participant's
records relating to, or for payments made on account of, beneficial interests
in a Book-Entry Security, or for maintaining, supervising or reviewing any
records relating to such beneficial interests.
37
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents, which agents may be affiliated with the Company. Any such
underwriter or agent involved in the offer and sale of the Securities will be
named in the applicable Prospectus Supplement.
Sales of Securities offered pursuant to any applicable Prospectus Supplement
may be effected from time to time in one or more transactions at a fixed price
or prices which may be changed, at prices related to the prevailing market
prices at the time of sale or at negotiated prices. The Company also may, from
time to time, authorize underwriters acting as the Company's agents to offer
and sell the Securities upon the terms and conditions set forth in the
applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Securities for whom they may act as agent.
Underwriters may sell Securities to or though dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from purchasers of Securities for whom
they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, will be set
forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts, concessions or commissions received by them
and any profit realized by them on resale of the Securities may be deemed to
be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act. Any
such indemnification arrangements will be described in the applicable
Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, each
class or series of Securities will be a new issue with no established trading
market. The Company may elect to list any class or series of Securities on any
exchange, but is not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of Securities, but will
not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the trading
market for the Securities.
Certain of the underwriters, agents and their affiliates may be customers
of, engage in transactions with and perform services from the Company in the
ordinary course of business.
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VALIDITY OF SECURITIES
The validity of any Securities will be passed upon for the Company by Norman
L. Roberts, Esq., Senior Vice President and General Counsel of the Company,
and for any underwriters or agents by Sullivan & Cromwell, Los Angeles,
California. Mr. Roberts beneficially owns 8,715 shares of Common Stock and
holds options to purchase 100,000 additional shares of Common Stock.
EXPERTS
The combined financial statements incorporated in this Prospectus by
reference from the Company's Registration Statement on Form 10 filed on August
18, 1997, as amended by Amendment No. 1 thereto filed on October 1, 1997 and
Amendment No. 2 thereto filed on October 22, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing. The August 31, 1996 consolidated financial statements
of Norand Corporation incorporated in this Prospectus by reference from the
Company's Registration Statement on Form 10 filed on August 18, 1997, as
amended by Amendment No. 1 thereto filed on October 1, 1997 and Amendment No.
2 thereto filed on October 22, 1997 have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
39
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Statement filing fee............................... $177,000
Trustees' fees and expenses..................................... 25,000*
Registrar and Transfer Agents' fees and expenses................ 25,000*
Depositaries' fees and expenses................................. 25,000*
Warrant Agents' fees and expenses............................... 25,000*
Legal fees and expenses......................................... 50,000*
Blue Sky fees and expenses...................................... 15,000*
Accounting fees and expenses.................................... 50,000*
Listing fees and expenses....................................... 25,000*
Rating agency fees.............................................. 260,000*
Printing and engraving costs.................................... 100,000*
Miscellaneous................................................... 25,000*
--------
Total......................................................... $802,000*
========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Elimination of Liability of Directors
The Certificate of Incorporation of the Company (the "Certificate") provides
that a director of the Company will not be personally liable to the Company or
its shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payments of dividends, stock purchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. If Delaware law is amended after the approval by the shareholders of
the Certificate to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by
Delaware law, as so amended from time to time. While the Certificate provides
directors with protection from awards for monetary damages for breaches of
their duty of care, it does not eliminate such duty. Accordingly, the
Certificate will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her duty
of care. The provisions of the Certificate described above apply to an officer
of the Company only if he or she is a director of the Company and is acting in
his or her capacity as director, and do not apply to officers of the Company
who are not directors.
Indemnification of Directors and Officers
The Certificate provides that each person who is or was a director or
officer of the Company or who is or was serving or who had agreed to serve at
the request of the Board or an officer of the Company as a director, officer
or employee of another corporation, partnership, joint venture, trust or other
enterprise, will be indemnified by the Company, in accordance with the By-
laws, to the full extent permitted from time to time by Delaware law, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment) or any other applicable laws as presently or
hereafter in effect. In addition, the Certificate provides that the Company
may provide indemnification to other persons as provided in the By-laws and
may enter into one or more agreements with any person which provide for
indemnification greater as different than that provided in the Certificate.
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The By-laws of the Company provide that each person who was or is made a
party or is threatened to be made a party or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director or officer of the Company
or is or was serving at the request of the Company, as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans maintained or sponsored by the Company, whether the basis of such
Proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, will be indemnified and held harmless by the
Company to the fullest extent authorized by Delaware law as the same exists or
may in the future be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification will continue as to a person who
has ceased to be a director, officer, employee or agent and will inure to the
benefit of his or her heirs, executors and administrators; however, except as
described in the following paragraph with respect to Proceedings to enforce
rights to indemnification, the Company will indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Board.
Pursuant to the By-laws, if a claim described in the preceding paragraph is
not paid in full by the Company within thirty days after a written claim has
been received by the Company, the claimant may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant will be entitled to be paid also
the expense of prosecuting such claim. The By-laws provide that it will be a
defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Company) that the claimant has not met the standards of
conduct which make it permissible under Delaware law for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense will be on the Company. Neither the failure of the Company (including
the Board, independent legal counsel or shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Delaware law, nor an actual
determination by the Company (including the Board, independent legal counsel
or shareholders) that the claimant has not met such applicable standard of
conduct, will be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
The By-laws provide that the right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final
disposition conferred in the Certificate will not be exclusive of any other
right which any person may have or may in the future acquire under any
statute, provision of the Certificate, the By-laws, agreement, vote of
shareholders or disinterested directors or otherwise. The Certificate permits
the Company to maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Company or any person serving at
the request of the Company, as a director, officer, employee or agent of
another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Company, against any such expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expense, liability or loss under Delaware law. The Company has
obtained directors' and officers' liability insurance providing coverage to
its directors and officers.
The Certificate provides that the right to indemnification conferred therein
is a contract right and includes the right to be paid by the Company the
expenses incurred in defending any such Proceeding in advance of its final
disposition, except that if Delaware law requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a Proceeding, will be made only upon delivery to the Company of
an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under the Certificate or otherwise.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
Form of Underwriting Agreement for Common Stock, Preferred Stock and
1(a) Depositary Shares.
1(b) Form of Underwriting Agreement for Debt Securities.
1(c) Form of Distribution Agreement.
4(a) Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3A to the Company's Registration Statement on Form 10 (the
"Form 10")).
4(b) By-laws of the Company, as amended (incorporated by reference to
Exhibit 3B to the Company's Form 10).
4(c) Rights Agreement dated as of September 24, 1997 between the Company
and The Chase Manhattan Bank, as Rights Agent (incorporated by
reference to Exhibit 3C to the Company's Form 10).
4(d) Form of Certificates of Designations of Preferred Stock.
4(e) Specimen certificate representing Preferred Stock.
4(f) Form of Deposit Agreement.
4(g) Specimen Depositary Receipt (attached as Exhibit A to Exhibit 4(f)).
4(h) Form of Senior Indenture.
4(i) Form of Subordinated Indenture.
4(j) Form of Warrant Agreement.
4(k) Form of Warrant Certificate (attached as Exhibit A to Exhibit 4(j)).
4(l) Upon the request of the Securities and Exchange Commission, the
Registrant will furnish a copy of all other instruments defining the
rights of holders of long-term debt of the Registrant.
Opinion of Norman L. Roberts, Esq. as to the validity of the
5(a) Securities.
12(a) Computation of ratio of earnings to fixed charges.
23(a) Consent of Norman L. Roberts, Esq. (included in Exhibit 5(a)).
23(b) Consent of Deloitte & Touche LLP.
23(c) Consent of Arthur Andersen LLP.
24 Powers of Attorney.
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The First National Bank of Chicago, as Trustee under the
Senior Indenture.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Subordinated
Indenture.
</TABLE>
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 the 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 and 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 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
II-3
<PAGE>
(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 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 Section 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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 provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted against the registrant 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Beverly Hills, State of California,
on the 19th day of December, 1997.
UNOVA, INC.
By: /s/ Alton J. Brann
__________________________________
Name: Alton J. Brann
Title: Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief December 19, 1997
____________________________________ Executive Officer and
Alton J. Brann Director
* Senior Vice President and December 19, 1997
____________________________________ Chief Financial Officer
Michael E. Keane
* Vice President, Finance and December 19, 1997
____________________________________ Principal Accounting Officer
Charles A. Cusumano
* Director December 19, 1997
____________________________________
Stephen E. Frank
* Director December 19, 1997
____________________________________
Orion L. Hoch
* Director December 19, 1997
____________________________________
Steven B. Sample
* Director December 19, 1997
____________________________________
William D. Walsh
</TABLE>
By: /s/ Virginia S. Young
____________________________
Virginia S. Young
(Attorney-in-fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
1(a) Form of Underwriting Agreement for Common Stock, Preferred Stock and
Depositary Shares.
1(b) Form of Underwriting Agreement for Debt Securities.
1(c) Form of Distribution Agreement.
4(a) Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3A of the Company's Registration Statement on Form 10 (the
"Form 10")).
4(b) By-laws of the Company, as amended (incorporated by reference to
Exhibit 3B of the Company's Form 10).
4(c) Rights Agreement, dated as of September 24, 1997, between the Company
and The Chase Manhattan Bank, as Rights Agent (incorporated by
reference to Exhibit 3C of the Company's Form 10).
4(d) Form of Certificate of Designations of Preferred Stock.
4(e) Specimen certificate representing Preferred Stock.
4(f) Form of Deposit Agreement.
4(g) Specimen Depositary Receipt (attached as Exhibit A to Exhibit 4(f)).
4(h) Form of Senior Indenture.
4(i) Form of Subordinated Indenture.
4(j) Form of Warrant Agreement.
4(k) Form of Warrant Certificate (attached as Exhibit A to Exhibit 4(j)).
4(l) Upon the request of the Securities and Exchange Commission, the
Registrant will furnish a copy of all other instruments defining the
rights of holders of long-term debt of the Registrant.
5(a) Opinion of Norman L. Roberts, Esq. as to the validity of the
Securities.
12(a) Computation of ratio of earnings to fixed charges.
23(a) Consent of Norman L. Roberts, Esq. (included in Exhibit 5(a)).
23(b) Consent of Deloitte & Touche LLP.
23(c) Consent of Arthur Andersen LLP.
24 Powers of Attorney.
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The First National Bank of Chicago, as Trustee under the
Senior Indenture.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York, as Trustee under the Subordinated
Indenture.
</TABLE>
<PAGE>
Exhibit 1(a)
UNOVA, INC.
[COMMON STOCK] [SERIES __ PREFERRED STOCK] [DEPOSITARY SHARES]
UNDERWRITING AGREEMENT
----------------------
___________ __, 199_
[INSERT UNDERWRITERS' ADDRESS BLOCKS]
Ladies and Gentlemen:
From time to time UNOVA, Inc., a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain shares of its [Common Stock] [Series __ Preferred Stock] [Depositary
Shares] (the "Shares") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Shares"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares".
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase
<PAGE>
any of the Shares. The obligation of the Company to issue and sell any of the
Shares and the obligation of any of the Underwriters to purchase any of the
Shares shall be evidenced by the Pricing Agreement with respect to the
Designated Shares specified therein. Each Pricing Agreement shall specify the
aggregate number of the Firm Shares, the maximum number of Optional Shares, if
any, the initial public offering price of such Firm and Optional Shares or the
manner of determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such Designated
Shares to be purchased by each Underwriter and the commission, if any, payable
to the Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Shares, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-....) in
respect of the Shares and certain other securities of the Company (the
"Initial Registration Statement") has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to such registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(a) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or transmitted
for filing, with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act
each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"); the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the registration statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, each
as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Shares, in the form in which it
has most recently been filed, or transmitted for filing, with the
Commission
2
<PAGE>
on or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Initial Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Shares in
the form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares;
3
<PAGE>
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Shares have been duly and validly authorized, and, when the
Firm Shares are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in the case
of any Optional Shares, pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Shares, such Designated Shares will
be duly and validly issued and fully paid and non-assessable; the Shares
conform to the description thereof contained in the Registration Statement
and the Designated Shares will conform to the description thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Shares;
(h) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or any Over-allotment Option, except
such as have been, or will have been prior to each Time of Delivery (as
defined in Section 4 hereof), obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
4
<PAGE>
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(j) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(k) The statements set forth in the Prospectus under the captions
"Description of Common Stock", "Description of Preferred Stock" and
"Description of Depositary Shares" and in the Prospectus as amended or
supplemented under the captions identified in a Pricing Agreement relating
to the terms of the Designated Shares, insofar as they purport to
constitute a summary of the terms of the stock, and under the caption "Plan
of Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(l) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
and
(m) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, and Arthur Andersen LLP who
have certified certain financial statements of Norand Corporation are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives and the Company otherwise agree in writing, earlier
than or later than the
5
<PAGE>
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer to an account designated by the Company
in Federal same day funds, (i) with respect to the Firm Shares, all in the
manner and at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Optional Shares, if any, in the manner
and at the time and date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First Time of
Delivery, herein called the "Second Time of Delivery". Each such time and date
for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Shares and prior to any Time of Delivery for such Shares which shall
be disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for such Shares and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Shares, and
during such same
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period to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Shares
or suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the applicable Pricing Agreement and from
time to time, to furnish the Underwriters in New York City with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Shares and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing to and including the later of (i)
the termination of trading restrictions for such Designated Shares, as
notified to the Company by the Representatives
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and (ii) the last Time of Delivery for such Designated Shares, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Designated Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the conversion
of convertible or exchangeable securities outstanding as of, the date of
the Pricing Agreement for such Designated Shares) without the prior written
consent of the Representatives.
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of the
applicable Pricing Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the New York Stock Exchange of the terms of the sale of the Shares;
(v) the cost of preparing certificates for the Shares; (vi) the cost and charges
of any transfer agent or registrar or dividend disbursing agent; and (vii) all
other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Options which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Shares are, at and as of
each Time of Delivery for such Designated Shares, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the
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<PAGE>
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof if the
Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 p.m. Washington, D.C. time,
on the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement.
(b) Sullivan & Cromwell, counsel for the Underwriters shall have
furnished to the Representatives such opinion or opinions (a draft of each
such opinion is attached as Annex I(a) hereto), dated each Time of Delivery
for such Designated Shares, with respect to the incorporation of the
Company, the Shares and the Prospectus, as amended or supplemented, as well
as such other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinions (a draft of
each such opinion is attached as Annex I(b) hereto), dated each Time of
Delivery for such Designated Shares, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued shares
of capital stock of the Company (including the Designated Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable; and the
Designated Shares conform to the description thereof in the Prospectus
as amended or supplemented;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by
the Company;
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<PAGE>
(v) The issue and sale of the Designated Shares being delivered at
such Time of Delivery and the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement with respect to
the Designated Shares and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-
laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Shares being
delivered at such Time of Delivery or the consummation by the Company of
the transactions contemplated by this Agreement or such Pricing
Agreement, except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Shares by the
Underwriters;
(vii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(viii) The statements set forth in the Prospectus under the captions
"Description of Common Stock", "Description of Preferred Stock" and
"Description of Depositary Shares" and in a Prospectus supplement under
the captions identified in a Pricing Agreement relating to the terms of
the Designated Shares, insofar as they purport to constitute a summary
of the terms of the Stock and under the captions "Plan of Distribution"
and "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate, complete
and fair;
(ix) The Company is not an "Investment Company" or an entity
"controlled" by an "Investment Company", as such terms are defined in
the Investment Company Act;
(x) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange
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<PAGE>
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xi) The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion
in subsection (viii) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(d) On the date of the Pricing Agreement for such Designated Shares
and at each Time of Delivery for such Designated Shares, the independent
accountants who have
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<PAGE>
certified the financial statements included or incorporated by reference
in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference
in the Registration Statement, if the date of such report is later than
such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the Designated Shares
any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Shares, and (ii) since the respective dates as of which information is
given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Shares there shall not have been
any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, the effect of
which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as amended relating to the Designated
Shares;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York or California State authorities;
or (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this Clause (iv) in
the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Firm Shares or Optional Shares or both on the terms
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<PAGE>
and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Shares;
[(h) The Designated Shares at each Time of Delivery shall have been
duly listed, subject to notice of issuance, on the New York Stock
Exchange;]
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request; and
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of the applicable Pricing
Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter of Designated Shares through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Shares.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
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<PAGE>
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Shares on the other from the offering of the Designated Shares to which
such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative
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fault of the Company on the one hand and the Underwriters of
the Designated Shares on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Shares in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations
with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares which it has agreed to purchase under
the Pricing Agreement relating to such Shares, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Shares or
Optional Shares, as the case may be, then the Company shall be entitled
to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase
such Shares on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have
so arranged for the purchase of such
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Shares, or the Company notifies the Representatives that it has so
arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for such
Shares for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with
respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Shares or Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase
the number of Firm Shares or Optional Shares, as the case may be, which
such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Shares and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the
number of Firm Shares or Optional Shares, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Shares or Optional Shares, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Shares or Optional
Shares, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Optional
Shares, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Firm Shares or the Over-
allotment Option relating to such Optional Shares, as the case may be,
shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any
16
<PAGE>
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares or Optional Shares with
respect to which such Pricing Agreement shall have been terminated except as
provided in Sections 6 and 8 hereof; but, if for any other reason, Designated
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all out-
of-pocket expenses approved in writing by the Representatives, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares, but
the Company shall then be under no further liability to any Underwriter with
respect to such Designated Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed
17
<PAGE>
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
18
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
UNOVA, INC.
By:................
Name:
Title:
Accepted as of the date hereof:
[Insert Underwriters' signature blocks]
19
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
[Insert Underwriters' address blocks]
.................., 199..
Ladies and Gentlemen:
UNOVA, Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
.......... , 19.. (the "Underwriting Agreement"), between the Company on the
one hand and ______________________ on the other hand to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares" consisting of Firm
Shares and any Optional Shares the Underwriters may elect to purchase). Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Shares pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are set
forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto and, (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares, as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
<PAGE>
the Company at the purchase price to the Underwriters set forth in Schedule II
hereto that portion of the number of Optional Shares as to which such election
shall have been exercised.
The Company hereby grants to each of the Underwriters the right to purchase
at their election up to the number of Optional Shares set forth opposite the
name of such Underwriter in Schedule I hereto on the terms referred to in the
paragraph above for the sole purpose of covering over-allotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares may be exercised
by written notice from the Representatives to the Company given within a period
of 30 calendar days after the date of this Pricing Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by the Representatives, but
in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
UNOVA, INC.
By:...........................
Name:
Title:
Accepted as of the date hereof:
[Insert Underwriters' signature blocks]
2
<PAGE>
SCHEDULE I
MAXIMUM
NUMBER OF NUMBER OF
FIRM OPTIONAL SHARES
SHARES TO BE WHICH MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- ------------ ----------------
------------ -------------
Total.......................============ =============
3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SHARES:
[Common Stock] [Series __ Preferred Stock] [Depositary Shares]
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$........ per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$........ per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$........ per Share in [immediately available funds]]
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds.
[DESCRIBE ANY BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED SHARES]
TIME OF DELIVERY:
...... a.m. (New York City time), ........, 19..
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
CAPTIONS OF PROSPECTUS SUPPLEMENT:
OTHER TERMS:
4
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made
a review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the basis
of specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in the Company's Registration Statement on Form 10
or, if applicable, Item 6 of the Company's Annual Report on Form 10-K for the
most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for such five fiscal years which were included or incorporated by reference in
the Company's Registration Statement on Form 10 or, if applicable, Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to their
attention as a result of the
<PAGE>
foregoing procedures that caused them to believe that this information does
not conform in all material respects with the disclosure requirements of items
301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Registration Statement on Form
10 or, if applicable, Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Registration Statement on Form 10 or, if
applicable, Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
2
<PAGE>
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
3
<PAGE>
Exhibit 1(b)
UNOVA, INC.
DEBT SECURITIES
--------------------------------------
UNDERWRITING AGREEMENT
----------------------
, 199_
[INSERT UNDERWRITERS' ADDRESS BLOCKS]
Ladies and Gentlemen:
From time to time UNOVA, Inc., a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an
<PAGE>
obligation of any of the Underwriters to purchase the Securities. The obligation
of the Company to issue and sell any of the Securities and the obligation of any
of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-....) (the
"Initial Registration Statement") in respect of the Securities and certain
other securities of the Company has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to such registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the Initial
2
<PAGE>
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereinafter becomes effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
3
<PAGE>
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
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descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus as amended or
supplemented under the captions identified in a Pricing Agreement relating
to the terms of the Designated Securities, insofar as they purport to
constitute a summary of the terms of the Securities, and under the caption
"Plan of Distribution", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate, complete and
fair;
(j) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
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(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
and
(m) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries and Arthur Andersen LLP who
have certified certain financial statements of Norand Corporation are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer to
an account designated by the Company in Federal same day funds, all in the
manner and at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes
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<PAGE>
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the applicable Pricing Agreement and from
time to time, to furnish the Underwriters in New York City with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
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<PAGE>
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
applicable Pricing Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct,
8
<PAGE>
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters shall have
furnished to the Representatives such opinion or opinions (a draft of each
such opinion is attached as Annex I(a) hereto), dated the Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Company, the Indenture, the Designated Securities and the Prospectus, as
amended or supplemented, as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Counsel for the Company, shall have furnished to the
Representatives their written opinion (a draft of such opinion is attached
as Annex I(b) hereto), dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial
9
<PAGE>
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities have been duly authorized and
when executed, authenticated, issued and delivered in accordance
herewith will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; and the
Designated Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor
will such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated by
this Agreement or such Pricing Agreement or the Indenture, except such
as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in
10
<PAGE>
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(ix) Neither the Company nor any of its subsidiaries is in
violation of its By-laws or Certificate of Incorporation or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or any of its properties may be
bound;
(x) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Plan of Distribution"
and in the Prospectus as amended or supplemented under the captions
identified in a Pricing Agreement relating to the terms of the
Designated Securities, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the
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<PAGE>
Prospectus, except for those referred to in the opinion in subsection
(x) of this Section 7(c), they have no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants who have certified the
financial statements included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex
II hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Securities any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
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<PAGE>
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities, the
effect of which, in any such case described in Clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to
the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York or California State authorities; or (iv) the outbreak
or escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request; and
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(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the applicable Pricing Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the
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<PAGE>
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata
15
<PAGE>
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
16
<PAGE>
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
17
<PAGE>
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
18
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
UNOVA, INC.
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
[Insert Underwriters' signature blocks]
19
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
[INSERT UNDERWRITERS' ADDRESS BLOCKS]
, 199_
Ladies and Gentlemen:
UNOVA, Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
_____________, 199_ (the "Underwriting Agreement"), between the Company on the
one hand and _________________ on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters,
<PAGE>
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
UNOVA, INC.
By:________________________________
Name:
Title:
Accepted as of the date hereof:
[Insert Underwriters' signature blocks]
2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
[NAMES OF UNDERWRITERS]...................................$
-----------
Total................................................$
===========
</TABLE>
3
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from
to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds.
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
Indenture dated , 19 , between the Company and , as Trustee
4
<PAGE>
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount
of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
5
<PAGE>
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in
each of the years through
at 100% of their principal amount plus accrued interest[, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$ ] principal amount of Designated Securities
in the years through at 100% of their principal amount
plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on , and
to a rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ]
[to an annual rate of % above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if
any, of (i) the then current weekly average per annum secondary market yield
for -month certificates of deposit over (ii) the then current interest
yield equivalentof the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
LOCK-UP PROVISIONS:
6
<PAGE>
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
CAPTIONS OF PROSPECTUS SUPPLEMENT:
OTHER TERMS:
7
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representative or representatives of the
Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in the
<PAGE>
Company's Registration Statement on Form 10 or, if applicable, Item 6 of
the Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's
Registration Statement on Form 10 or, if applicable, Annual Reports on Form
10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Registration Statement on Form 10 or, if applicable, Annual
Report on Form 10-K for the most recent fiscal year;
2
<PAGE>
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Registration Statement on Form 10 or, if applicable, Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
3
<PAGE>
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
<PAGE>
EXHIBIT 1(c)
UNOVA, INC.
[AGGREGATE PRINCIPAL AMOUNT]
MEDIUM-TERM NOTES[, SERIES .....]
DISTRIBUTION AGREEMENT
----------------------
____________________, ____
[Name(s) and
Address(es) of Agent(s)]
Ladies and Gentlemen:
UNOVA, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell from time to time its Medium-Term Notes (the "Securities") in an aggregate
amount up to [$........] and agrees with each of you (individually, an "Agent"
and, collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of the Agents to purchase
Securities as principal.
The Securities will be issued under an indenture, dated as of ..........,
19.. (the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"). The Securities shall have the maturity
ranges, interest rates, if any, redemption provisions and other terms set forth
in the Prospectus referred to below as it may be amended or supplemented from
time to time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 (File No. 333-...... in respect
of the Securities has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
<PAGE>
such Agent, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, have
been declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Agents); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act, are
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective
but excluding Form T-1, each as amended at the time such part of the
registration statement became effective, is hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be deemed to refer to
and include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein by reference; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a) hereof) in
relation to Securities to be sold pursuant to this Agreement, in the form filed
or transmitted for filing with the Commission pursuant to Rule 424(b) under the
Act and in accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to
2
<PAGE>
the requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by any Agent expressly for
use in the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable;
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
(h) The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement and
any Terms Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation, as amended,
or the By-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or
3
<PAGE>
governmental agency or body is required for the solicitation of offers to
purchase Securities, the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by such Agent of offers to
purchase Securities from the Company and with purchases of Securities by such
Agent as principal, as the case may be, in each case in the manner contemplated
hereby;
(i) Neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default in the performance or
observance of any material obligation, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(j) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities and under the
caption "Plan of Distribution", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its subsidiaries is
subject, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to each offering and sale
of the Securities, will not be an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company hereunder or
under any Terms Agreement, the aggregate amount of Securities which shall have
been issued and sold by the Company hereunder or under any Terms Agreement and
of any debt securities of the Company (other than such Securities) that shall
have been issued and sold pursuant to the Registration Statement will not exceed
the amount of debt securities registered under the Registration Statement; and
(o) Deloitte & Touche LLP who have certified certain financial statements
of the Company and its subsidiaries, and Arthur Andersen LLP who have certified
certain financial statements of Norand Corporation are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
4
<PAGE>
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each
Agent hereby, severally and not jointly, agrees, as agent of the Company,
to use its reasonable efforts to solicit and receive offers to purchase the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. So long as this
Agreement shall remain in effect with respect to any Agent, the Company
shall not, without the consent of such Agent, solicit or accept offers to
purchase, or sell, any debt securities with a maturity at the time of
original issuance of 9 months to [ ] years except pursuant to this
Agreement, any Terms Agreement, or except pursuant to a private placement
not constituting a public offering under the Act or except in connection
with a firm commitment underwriting pursuant to an underwriting agreement
that does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may
solicit and accept offers to purchase, Securities directly on its own
behalf in transactions with persons other than broker-dealers, and, in the
case of any such sale not resulting from a solicitation made by any Agent,
no commission will be payable with respect to such sale. These provisions
shall not limit Section 4(f) hereof or any similar provision included in
any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached
hereto as Annex II as it may be amended from time to time by written
agreement between the Agents and the Company (the "Administrative
Procedure"). The provisions of the Administrative Procedure shall apply to
all transactions contemplated hereunder other than those made pursuant to a
Terms Agreement. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by
each of them in the Administrative Procedure. The Company will furnish to
the Trustee a copy of the Administrative Procedure as from time to time in
effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable,
but in any event not later than one business day in New York City, after
receipt of notice from the Company, the Agents will suspend solicitation of
offers to purchase Securities from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
During such period, the Company shall not be required to comply with the
provisions of Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the Agents
that such solicitation may be resumed, however, the Company shall
simultaneously provide the documents required to be delivered by Sections
4(h), 4(i), 4(j) and 4(k), and the Agents shall have no obligation to
solicit offers to purchase the Securities until such documents have been
received by the Agents. In addition, any failure by the Company to comply
with its obligations hereunder, including without limitation its
obligations to deliver the documents required by Sections 4(h), 4(i), 4(j)
and 4(k), shall automatically terminate the Agents' obligations hereunder,
including without limitation their respective obligations to solicit offers
to purchase the Securities hereunder as agent or to purchase Securities
hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
5
<PAGE>
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
<S> <C>
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years to 30 years
From more than 30 years to less than 50 years
50 years and more
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent; a Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth; each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities; and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
6
<PAGE>
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Sullivan & Cromwell, Los Angeles, California, at 8:00 a.m., Los
Angeles time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Company but in
no event shall be later than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the "Commencement
Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration Statement or
the Prospectus (A) prior to the Commencement Date which shall be disapproved by
any Agent promptly after reasonable notice thereof or (B) after the date of any
Terms Agreement or other agreement by an Agent to purchase Securities as
principal and prior to the related Time of Delivery which shall be disapproved
by any Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form previously approved
by such Agent and to file such Pricing Supplement pursuant to Rule 424(b)(3)
under the Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used; (iii) to make no amendment or supplement to the Registration Statement or
Prospectus, other than any Pricing Supplement, at any time prior to having
afforded each Agent a reasonable opportunity to review and comment thereon; (iv)
to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any supplement
to the Prospectus or any amended Prospectus (other than any Pricing Supplement
that relates to Securities not purchased through or by such Agent) has been
filed with the Commission, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or for
additional information; and (v) in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any such
prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
7
<PAGE>
(c) To furnish such Agent with copies of the Registration Statement and
each amendment thereto, with copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except as provided in the
Administrative Procedure), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as principal) and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such Agent, in its
capacity as agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than one
business day later); and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to so
advise such Agent promptly by telephone (with confirmation in writing) and to
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance; provided, however, that if during such same period such Agent
continues to own Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) So long as any Securities are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other) furnished to
stockholders, and deliver to such Agent (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as such Agent may from time to
time reasonably request (such financial statements to be on a consolidated basis
to the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing to
and including the later of (i) the termination of the trading restrictions for
the Securities purchased thereunder, as notified to the Company by such Agent
and (ii) the related Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which both mature more
than 9 months after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
8
<PAGE>
(g) That each acceptance by the Company of an offer to purchase Securities
hereunder (including any purchase by such Agent as principal not pursuant to a
Terms Agreement), and each execution and delivery by the Company of a Terms
Agreement with such Agent, shall be deemed to be an affirmation to such Agent
that the representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion or opinions by Sullivan &
Cromwell, counsel to the Agents, as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent a written opinion of the General Counsel
of the Company, or other counsel for the Company satisfactory to such Agent,
dated the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent,
to the effect that such Agent may rely on the opinion of such counsel referred
to in Section 6(c) hereof which was last furnished to such Agent to the same
extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall be
amended or supplemented and each time that a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, in either case to
set forth financial information included in or derived from the Company's
consolidated financial statements or accounting records, and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter under this
Section 4(j) as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall cause the independent certified public accountants
who have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as the
9
<PAGE>
case may be, in form satisfactory to such Agent, of the same tenor as the letter
referred to in Section 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date of such
letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial information
or other matter, such letter may reconfirm as true and correct at such date as
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such sale,
as the case may be, in such form and executed by such officers of the Company as
shall be satisfactory to such Agent, to the effect that the statements contained
in the certificates referred to in Section 6(h) hereof which was last furnished
to such Agent are true and correct at such date as though made at and as of such
date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in
lieu of such certificate, certificates of the same tenor as the certificates
referred to in said Section 6(h) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities from the
Company as the result of an offer to purchase solicited by such Agent the right
to refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(e), 6(f) or 6(g) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(e) and 6(g), and that
such Agent shall have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(e) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as
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provided in Section 4(b) hereof, including the fees and disbursements of counsel
for the Agents in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees incident to, and the
fees and disbursements of counsel for the Agents in connection with, any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing the Securities;
(viii) the fees and expenses of any Trustee and any agent of any Trustee and any
transfer or paying agent of the Company and the fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and the
Securities; (ix) any advertising expenses connected with the solicitation of
offers to purchase and the sale of Securities so long as such advertising
expenses have been approved by the Company; and (x) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7 and
8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented (including the Pricing Supplement) with respect
to such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; (ii) no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
(iii) all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date,
with respect to such matters as such Agent may reasonably request, and (ii)
if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, an opinion
or opinions, dated such applicable date, to the effect that such Agent may
rely on the opinion or opinions which were last furnished to such Agent
pursuant to this Section 6(b) to the same extent as though it or they were
dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to such date) or, in any case, in lieu of such an opinion or opinions, an
opinion or opinions of the same tenor as the opinion or opinions referred
to in clause (i) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
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<PAGE>
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) General Counsel of the Company, or other counsel for the Company
satisfactory to such Agent, shall have furnished to such Agent their
written opinions, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or to which any property of the Company or any of its
subsidiaries is subject, which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(v) The Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered by the Company, will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Indenture
conforms and the Securities will conform to the descriptions thereof
in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Terms Agreement and the consummation
of the transactions herein and therein
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<PAGE>
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, of the Company or the By-laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by the Agents of offers to purchase Securities from
the Company and with purchases of Securities by an Agent as principal,
as the case may be, in each case in the manner contemplated hereby;
(ix) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any material obligation, covenant
or condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the caption
"Description of the Debt Securities" and "Description of Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the caption "Plan of Distribution" and
["Supplemental Plan of Distribution"], insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(xi) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement
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<PAGE>
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
and supplemented and any further amendments and supplements thereto
made by the Company prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (x) of this
Section 6(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of such opinion, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Not later than 10:00 a.m., New York City time, on the Commencement
Date and on each applicable date referred to in Section 4(j) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the case may
be, the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or such
applicable date, as the case may be, in form and substance satisfactory to
such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery and (ii) since the respective dates as of
which information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities to
be delivered
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<PAGE>
at the relevant Time of Delivery there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant Time
of Delivery, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of such Agent so material and adverse as to
make it impracticable or inadvisable to proceed with the solicitation by
such Agent of offers to purchase Securities from the Company or the
purchase by such Agent of Securities from the Company as principal, as the
case may be, on the terms and in the manner contemplated in the Prospectus
as amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery;
(f) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange (the "NYSE"); (ii) a
suspension or material limitation in trading in the Company's securities on
the NYSE; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State or California
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in the Clause
(iv) in the judgment of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities or the
purchase of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the terms
and in the manner contemplated in the Prospectus;
(h) The Company shall have furnished or caused to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
such form and executed by such officers of the Company as shall be
satisfactory to such Agent, as to the accuracy of the representations and
warranties of the Company herein at and as of the Commencement Date or such
applicable date, as the case may be, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as to the
matters set forth in subsections (a) and (e) of this Section 6, and as to
such other matters as such Agent may reasonably request; and
(i) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a
suspension or material limitation in foreign exchange trading in such
currency, currencies or composite currency by a major international bank, a
general moratorium on commercial banking activities in the country or
countries issuing such currency, currencies or composite currency, the
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outbreak or escalation of hostilities involving, the occurrence of any
material adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such currency,
currencies or composite currency.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities,
or any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by such Agent expressly
for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly
16
<PAGE>
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and each Agent on the other from the offering of the Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and each Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions
or discounts received by such Agent in respect thereof. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any Agent on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by per capita
allocation (even if all Agents were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to
contribute
17
<PAGE>
any amount in excess of the amount by which the total public offering price
at which the Securities purchased by or through it were sold exceeds the
amount of any damages which such Agent has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute
are several in proportion to the respective purchases made by or through it
to which such loss, claim, damage or liability (or action in respect
thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of
each Agent under this Section 7 shall be in addition to any liability which
such Agent may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and 9
hereof are concerned.
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11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to ______________________ shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to
____________________________________, Facsimile Transmission No. ____________,
Attention: ____________, and if to [name(s) of other Agent(s)] shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to [address(es), telex no(s), and facsimile
transmission no(s) of other Agent(s),] and if to the Company shall be sufficient
in all respects when delivered or sent by facsimile transmission or registered
mail to UNOVA, Inc., 360 North Crescent Drive, Beverly Hills, California 90210,
Telephone No. ( ) _________, Facsimile No. _________, Attention:
_____________.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ...... counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and you in accordance with its terms.
Very truly yours,
UNOVA, INC.
By:
-------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
- -------------------------------------
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ANNEX I
UNOVA, INC.
[TITLE OF SECURITY]
TERMS AGREEMENT
---------------
___________________, ____
[Name(s) and
Address(es) of Agent(s)]
Ladies and Gentlemen:
UNOVA, Inc. (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated .......................,
19.. (the "Distribution Agreement"), between the Company on the one hand and
[Name(s) of Agent(s)] (the "Agents") on the other, to issue and sell to [Name(s)
of Agent(s)] the securities specified in the Schedule hereto (the "Purchased
Securities"). Each of the provisions of the Distribution Agreement not
specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Name(s) of Agent(s)] and [Name(s) of Agent(s)] agree[s] to
purchase from the Company the Purchased Securities, at the time and place, in
the principal amount and at the purchase price set forth in the Schedule hereto.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you this letter
and such acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a binding agreement
between you and the Company.
UNOVA, INC.
By:
------------------------------------
Name:
Title:
Accepted:
[NAME(S) OF AGENT(S)]
BY:
-------------------------
NAME:
TITLE:
2
<PAGE>
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$.................... or units of other Specified Currency]
[PRICE TO PUBLIC:]
Purchase Price by [NAME(S) OF AGENT(S)]:
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM ............... TO ...............] [AND ACCRUED AMORTIZATION, IF
ANY, FROM ................. TO ................]
Method of and Specified Funds for Payment of Purchase Price:
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN
[IMMEDIATELY AVAILABLE] FUNDS]
Indenture:
Indenture, dated as of ....................., 19.., between the Company and
..................., as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
I-1
<PAGE>
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINION OF COUNSEL TO THE COMPANY REFERRED TO IN SECTION 4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
Other Provisions (including Syndicate Provisions, if applicable):
I-2
<PAGE>
ANNEX II
UNOVA, INC.
ADMINISTRATIVE PROCEDURE
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ......................, ____ (the "Distribution
Agreement"), between UNOVA, Inc. (the "Company") and [Name(s) of Agent(s)] (the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
-----------------------------------------------------------
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of .................., ____, (the "Certificate
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
II-1
<PAGE>
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of
Global Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
II-2
<PAGE>
(9) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
II-3
<PAGE>
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a
list of CUSIP numbers previously delivered to the Trustee by the Company
representing such Book-Entry Security and then advise the Company and the
Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number of
days by which such date succeeds the record date for the Depositary's
purposes (which in the case of Floating Rate Securities which reset
weekly shall be the date five calendar days immediately preceding the
applicable Interest Payment Date and in the case of all other Book-
Entry Securities shall be the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount of interest
payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such Book-
Entry Security to the Trustee's participant account and credit such Book-Entry
Security to such Agent's participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement account for an amount
equal to the price of such Book-Entry Security less such Agent's commission.
The entry of such a deliver order shall constitute a representation and warranty
by the Trustee to the Depositary that (a) the Global Security representing such
Book-Entry Security has been issued and authenticated and (b) the Trustee is
holding such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such Book-
Entry Security to such Agent's participant account and credit such Book-Entry
Security to the participant accounts of the Participants with respect
II-4
<PAGE>
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
the account of the Company maintained at [NAME OF BANK], New York, New York, or
such other account as the Company may have previously specified to the Trustee,
in funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date (as
defined below), or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth Business Day following the date on which
such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall
II-5
<PAGE>
constitute "settlement" with respect to such Book-Entry Security. All orders of
Book-Entry Securities solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company on a particular date (the "Trade Date") will be
settled on a date (the "Settlement Date") which is the fifth Business Day after
the Trade Date pursuant to the "Settlement Procedure Timetable" set forth below,
unless the Company and the purchaser agree to settlement on another Business Day
which shall be no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the fifth Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
- --------- ----
<S> <C> <C>
A 5:00 p.m. on the Business Day following the Trade Date or
10:00 a.m. on the Business Day prior to the Settlement
Date, whichever is earlier
B 12:00 noon on the second Business Day immediately preceding
the Settlement Date
C 2:00 p.m. on the second Business Day immediately preceding
the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a Book-
Entry Security pursuant to Settlement Procedure "F", the Trustee may deliver to
the Depositary, through the Depositary's Participant Terminal System, as soon as
practicable a withdrawal message instructing the Depositary to debit such Book-
Entry Security to the Trustee's participant account, provided that the Trustee's
participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed
II-6
<PAGE>
with respect to all the Book-Entry Securities represented by a Global Security,
the Trustee will mark such Global Security "canceled", make appropriate entries
in the Trustee's records and send such canceled Global Security to the Company.
The CUSIP number assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If
a withdrawal message is processed with respect to one or more, but not all, of
the Book-Entry Securities represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Security or Securities and shall be canceled
immediately after issuance and the other of which shall represent the remaining
Book-Entry Securities previously represented by the surrendered Global Security
and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall
have occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its use
of funds during the period when the funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
- --------------------------------------------------------------
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
II-7
<PAGE>
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
II-8
<PAGE>
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date;
(12) If a Floating Rate Certificated Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if the Company and the purchaser agree to settlement on the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
II-9
<PAGE>
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the fifth Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
II-10
<PAGE>
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-11
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(d), as the case may be, of the Distribution
Agreement, the Company's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been separately furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the Agents; and
on the basis of specified procedures including inquiries of officials of
the Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in the Company's Registration
Statement on Form 10 or, if applicable, Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Registration
Statement on Form 10 or, if applicable, Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures
III-1
<PAGE>
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does
not conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Registration Statement on Form 10 or, if applicable, Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Registration Statement on Form 10 or, if applicable, Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
III-2
<PAGE>
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as
compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the Agents, in
each case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Agents, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Agents or in documents incorporated by reference
in the Prospectus specified by the Agents, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(d) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
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<PAGE>
Exhibit 4(d)
CERTIFICATE OF DESIGNATIONS
OF THE
____% SERIES __ [CONVERTIBLE] PREFERRED STOCK
(Par Value $.01 Per Share)
OF
UNOVA, INC.
--------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
--------
The undersigned duly authorized officer of UNOVA, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Company"), in accordance with the provisions of Section 103
thereof, and pursuant to Section 151 thereof, DOES HEREBY CERTIFY:
That the Certificate of Incorporation of the Company provides that the
Company is authorized to issue 50,000,000 shares of Preferred Stock, par value
$.01 per share, issuable in series by the Board. The Company has authorized and
reserved for issuance 3,000,000 shares of Series A Junior Participating
Preferred Stock ("Series A Preferred Stock"); and
That pursuant to the authority conferred upon the Board of Directors
(the "Board") by the Certificate of Incorporation of the Company, the Board on
_________ __, 199_, approved the creation, issuance and the voting powers of
shares of Preferred Stock to be issued in one or more series as determined by a
duly authorized committee of the Board, and, on _______________, 199_ such duly
authorized committee of the Board adopted the following resolution creating a
series of ________________ shares of Preferred Stock designated as set forth
below:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board by provisions of the Certificate of Incorporation of the
Company[, as amended] (the "Certificate of Incorporation") and the General
Corporation Law of the State of Delaware, the issuance of a series of Preferred
Stock, which shall consist of ________________ shares of the 50,000,000 shares
of Preferred Stock which the Company now has authority to issue, be, and the
same hereby is, authorized, and this committee of the Board hereby fixes the
powers, designations, preferences and relative,
<PAGE>
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, set forth in the Certificate of Incorporation which may be applicable
to the Preferred Stock) authorized by this resolution as follows:
1. Designation and Rank. The designation of such series of Preferred
Stock authorized by this resolution shall be ____% Series __ [Convertible]
Preferred Stock (the "Series __Preferred Stock"). The maximum number of shares
of Series __ Preferred Stock shall be _________________. Shares of the Series
__ Preferred Stock shall have a liquidation preference of $_____ per share. The
Series __Preferred Stock shall rank prior to the Company's Common Stock and to
all other classes and series of equity securities of the Company now or
hereafter authorized, issued or outstanding (the Common Stock and such other
classes and series of equity securities collectively may be referred to herein
as the "Junior Stock"), other than any classes or series of equity securities of
the Company ranking on a parity with (the "Parity Stock") or senior to (the
"Senior Stock") the Series __ Preferred Stock as to dividend rights and rights
upon liquidation, winding up or dissolution of the Company. The Series __
Preferred Stock shall be junior to all outstanding debt of the Company. The
Series __ Preferred Stock shall be [senior to] [on a parity with] the Series A
Preferred Stock as to both payments of dividends and distribution of assets upon
liquidation, dissolution and winding up of the Company. The Series __ Preferred
Stock shall be subject to creation of Senior Stock, Parity Stock and Junior
Stock to the extent not expressly prohibited by the Company's Certificate of
Incorporation.
2. Cumulative Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of
Series __ Preferred Stock shall be entitled to receive, when, as, and if
declared by the Board, out of funds legally available therefor, cumulative
cash dividends at the rate of _____% per annum per share, which shall
accrue from the original issue date and be payable quarterly in arrears on
the first day of [March, June, September and December] in each year,
commencing on _______________, ____, or, if such day is a non-business day,
on the next business day (each of such dates, a "Dividend Payment Date").
Each declared dividend shall be payable to holders of record as they appear
on the stock books of the Company at the close of business on such record
dates, not more than 60 calendar days preceding the payment dates therefor,
as are determined by the Board or a duly authorized committee thereof (each
of such dates, a "Record Date"). Quarterly dividend periods (each a
"Dividend Period") shall commence on and include the first day of
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<PAGE>
[March, June, September and December] of each year and shall end on and
include the date next preceding the next following Dividend Payment Date.
The amount of dividends payable per share for each full Dividend
Period shall be computed by dividing by four the amount determined by
applying the _____% annual dividend rate to the $_____ liquidation
preference of such share. Dividends on the Series __ Preferred Stock shall
accrue day by day. Dividends shall be cumulative. The initial quarterly
dividend payable on _______________, ____ and the amount of any dividend
payable for any other period shorter than a full Dividend Period shall be
computed on the basis of a 360-day year composed of twelve 30-day months
and the actual number of days elapsed in such period.
(b) Priority as to Dividends. No full dividends shall be
declared or paid or set apart for payment on Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to the Series __
Preferred Stock for any period unless full dividends for the immediately
preceding Dividend Period on the Series __ Preferred Stock (including any
accumulation in respect of unpaid dividends from prior Dividend Periods)
have been or contemporaneously are declared and paid (or declared and a sum
sufficient for the payment thereof set apart for such payment). When
dividends are not paid in full (or declared and a sum sufficient for such
full payment is not so set apart) upon the Series __ Preferred Stock and
any other Preferred Stock ranking on a parity as to dividends with the
Series __ Preferred Stock, dividends declared upon shares of Series __
Preferred Stock and such other Preferred Stock ranking on a parity as to
dividends shall be declared pro rata, so that the amount of dividends
declared per share on the Series __ Preferred Stock and such other
Preferred Stock shall bear in all cases to each other the same ratio that
accrued dividends for the then-current Dividend Period per share on the
shares of Series __ Preferred Stock (including any accumulation in respect
of unpaid dividends for prior Dividend Periods) and accrued dividends,
including required or permitted accumulations, if any, of such other
Preferred Stock, bear to each other.
Unless full dividends on the Series __ Preferred Stock have been
declared and paid or set apart for payment for the immediately preceding
Dividend Period (including any accumulation in respect of unpaid dividends
for prior Dividend Periods) (i) no cash dividend or other distribution
(other than in shares of Junior Stock) shall be declared or paid or set
aside for payment on the Junior Stock, (ii) the Company may not, directly
or indirectly, repurchase, redeem or otherwise acquire any shares of its
Junior Stock (or any moneys paid to or made available for a sinking fund
for the redemption of any shares except by conversion into or exchange for
Junior Stock) and (iii) the Company may not, directly or indirectly,
repurchase, redeem or otherwise acquire any shares of
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<PAGE>
Series __ Preferred Stock or Parity Stock (or any moneys paid to or made
available for a sinking fund for the redemption of any shares of any such
stock) otherwise than pursuant to a pro rata offer to purchase or a
concurrent redemption of all, or a pro rata portion, of the outstanding
shares of Series __ Preferred Stock and Parity Stock (except by conversion
into or exchange for Junior Stock).
The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company if, under the preceding paragraph, the Company would be prohibited
from purchasing or otherwise acquiring such shares at such time and in such
manner.
3. Redemption.
(a) General. The shares of the Series __ Preferred Stock will
not be redeemable prior to ________________, 19__. At any time on or after
__________________, 19__, subject to the applicable restrictions set forth
in this Section 3 and applicable law, the shares of Series __ Preferred
Stock may be redeemed, in whole or in part, at the election of the Company,
upon notice as provided in Section 3(b) hereof, by resolution of its Board
of Directors, at any time or from time to time, at the redemption price of
$_____ per share, plus, in each case, an amount equal to all accrued and
unpaid dividends to the date fixed for redemption.
If less than all the outstanding shares of Series __ Preferred
Stock are to be redeemed, the Company will select those to be redeemed pro
rata, by lot or by a substantially equivalent method. On and after the
redemption date, dividends shall cease to accrue on the shares of Series __
Preferred Stock called for redemption, and they shall be deemed to cease to
be outstanding, provided that the redemption price (including any accrued
and unpaid dividends to the date fixed for redemption) has been duly paid
or provided for.
(b) Notice of Redemption. Notice of any redemption, setting
forth (i) the date and place fixed for said redemption, (ii) the redemption
price and (iii) a statement that dividends on the shares of Series __
Preferred Stock to be redeemed will cease to accrue and accumulate on such
redemption date shall be mailed, postage prepaid, at least 30 days but not
more than 60 days prior to said redemption date to each holder of record of
the Series __ Preferred Stock to be redeemed at his or her address as the
same shall appear on the books of the Company. If less than all the shares
of the Series __ Preferred Stock owned by such holder are then to be
redeemed, the notice shall specify the number of shares
-4-
<PAGE>
thereof which are to be redeemed and the numbers of the certificates
representing such shares.
If such notice of redemption shall have been so mailed and if on
or before the redemption date specified in such notice all funds necessary
for such redemption shall have been set aside by the Company separate and
apart from its other funds in trust for the account of the holders of the
shares of the Series __ Preferred Stock so to be redeemed (so as to be and
continue to be available therefor), then, on and after said redemption
date, notwithstanding that any certificate for shares of the Series __
Preferred Stock so called for redemption shall not have been surrendered
for cancellation, the shares of the Series __ Preferred Stock so called for
redemption shall be deemed to be no longer outstanding, the dividends
thereon shall cease to accrue, and all rights with respect to such shares
of the Series __ Preferred Stock so called for redemption shall forthwith
cease and terminate, except only the right of the holders thereof to
receive out of the funds so set aside in trust the amount payable on
redemption thereof, but without interest, upon surrender (and endorsement
or assignment for transfer, if required by the Company) of their
certificates.
However, if such notice of redemption shall have been so mailed,
and if prior to the date of redemption specified in such notice all said
funds necessary for such redemption shall have been irrevocably deposited
in trust for the account of the holders of the shares of the Series __
Preferred Stock to be redeemed (so as to be and continue to be available
therefor) with a bank or trust company named in such notice doing business
in the City of New York or the State of [California] and having capital
surplus and undivided profits of at least $50,000,000, thereupon and
without awaiting the redemption date, all shares of the Series __ Preferred
Stock with respect to which such notice shall have been so mailed, and such
deposit shall have been so made shall be deemed to be no longer outstanding
and all rights with respect to such shares of the Series __ Preferred Stock
shall forthwith upon such deposit in trust cease and terminate, except only
the right of the holders thereof on or after the redemption date to receive
from such deposit the amount payable upon the redemption, but without
interest, upon surrender (and endorsement or assignment to transfer, if
required by the Company) of their certificates.
In case the holders of shares of the Series __ Preferred Stock
which shall have been redeemed shall not within two years (or any longer
period if required by law) after the redemption date claim any amount so
deposited in trust for the redemption of such shares, such bank or trust
company shall, upon demand and if permitted by applicable law, pay over to
the Company any such unclaimed amount so deposited with it, and shall
thereupon be relieved of all responsibility
-5-
<PAGE>
in respect thereof, and thereafter the holders of such shares shall,
subject to applicable escheat laws, look only to the Company for payment of
the redemption price thereof, but without interest from the date of
redemption.
(c) Status of Shares Redeemed. Shares of Series __ Preferred
Stock redeemed, purchased or otherwise acquired for value by the Company,
shall, after such acquisition, have the status of authorized and unissued
shares of Preferred Stock and may be reissued by the Company at any time as
shares of any series of Preferred Stock other than as shares of Series __
Preferred Stock.
4. Voting Rights.
The voting rights of the Series __ Preferred Stock shall be as
follows:
[(a) General Voting Rights. Except as expressly provided
hereinafter in this Section, or as otherwise from time to time required by
applicable law, this Series of Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrears.
(i) Right to Elect Directors. In the event that an amount
equal to six quarterly dividend payments on this Series of Preferred
Stock shall have accrued and be unpaid, the holders of this Series of
Preferred Stock shall have the right, voting separately as a class
together with holders of shares of any Parity Stock upon which like
voting rights have been conferred and are exercisable ("Voting Parity
Stock"), to elect two members of the Board of Directors, each member
to be in addition to the then authorized number of directors, at the
next annual meeting of stockholders and thereafter until dividends on
this Series of Preferred Stock have been paid in full for four
consecutive Dividend Periods, including the last preceding Dividend
Period.
(ii) Term of Office of Directors. Any director who shall
have been elected by holders of this Series of Preferred Stock and
Voting Parity Stock entitled to vote in accordance with this
subparagraph (b) shall hold office for a term expiring (subject to the
earlier payment, or declaration and setting aside for payment, of
dividends on this Series of Preferred Stock for four consecutive
Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either
for or without cause, by, and only by, the affirmative vote of the
holders of record of a majority of the shares of this Series of
Preferred Stock and Voting Parity Stock present and voting, in
-6-
<PAGE>
person or by proxy, at a special meeting of such stockholders called
for such purpose, and any vacancy created by such removal may also be
filled at such meeting. A meeting for the removal of a director
elected by the holders of this Series of Preferred Stock and Voting
Parity Stock and the filling of the vacancy created thereby shall be
called by the Secretary of the Company as promptly as possible and in
any event within 10 days after receipt of a request therefor signed by
the holders of not less than 25% of the outstanding shares of this
Series of Preferred Stock, subject to any applicable notice
requirements imposed by law or regulation. Such meeting shall be held
at the earliest practicable date thereafter, provided that no such
meeting shall be required to be held during the 90-day period
preceding the date fixed for the annual meeting of stockholders.
Upon payment, or declaration and setting aside for payment,
of dividends on this Series of Preferred Stock for four consecutive
Dividend Periods the terms of office of all directors elected by the
holders of the shares of this Series of Preferred Stock and the Voting
Parity Stock pursuant thereto then in office shall, without further
action, thereupon terminate unless otherwise required by law. Upon
such termination the number of directors constituting the Board of
Directors of the Company shall, without further action, be reduced by
two, subject always to the increase of the number of directors
pursuant to the foregoing provisions in the case of the future right
of holders of the shares of this Series of Preferred Stock and Voting
Parity Stock to elect directors as provided above.
(iii) Vacancies. Any vacancy caused by the death or
resignation of a director who shall have been elected in accordance
with this subparagraph (b) may be filled by the remaining director so
elected or, if not so filled, by a vote of holders of a plurality of
the shares of this Series of Preferred Stock and Voting Parity Stock
present and voting, in person or by proxy, at a meeting called for
such purpose. Unless such vacancy shall have been filled by the
remaining director as aforesaid, such meeting shall be called by the
Secretary of the Company at the earliest practicable date after such
death or resignation, and in any event within 10 days after receipt of
a written request signed by the holders of record of at least 25% of
the outstanding shares of this Series of Preferred Stock, subject to
any applicable notice requirements imposed by law or regulation.
Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the 90-day period
preceding the date fixed for the annual meeting of stockholders.
-7-
<PAGE>
(iv) Stockholders' Right to Call Meeting. If any meeting of
the holders of this Series of Preferred Stock and Voting Parity Stock
required by this subparagraph (b) to be called shall not have been
called within 30 days after personal service of a written request
therefor upon the Secretary of the Company or within 30 days after
mailing the same within the United States of America by registered
mail addressed to the Secretary of the Company at its principal
executive offices, subject to any applicable notice requirements
imposed by law or regulation, then the holders of record of at least
25% of the outstanding shares of this Series of Preferred Stock may
designate in writing one of their number to call such meeting at the
expense of the Company, and such meeting may be called by such person
so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than
permitted by law or regulation) as may be acceptable to the holders of
a majority of the total number of shares of this Series of Preferred
Stock. Any holder of this Series of Preferred Stock so designated
shall have access to the Preferred Stock books of the Company for this
Series of Preferred Stock for the purpose of causing such meeting to
be called pursuant to these provisions.
(v) Quorum. At any meeting of the holders of this Series of
Preferred Stock called in accordance with the provisions of this
subparagraph (b) for the election or removal of directors, the
presence in person or by proxy of the holders of a majority of the
total number of shares of this Series of Preferred Stock and Voting
Parity Stock shall be required to constitute a quorum; in the absence
of a quorum, a majority of the holders present in person or by proxy
shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum shall
be present.
(c) Voting Rights on Extraordinary Matters. So long as any
shares of this Series of Preferred Stock shall be outstanding and unless
the consent or approval of a greater number of shares shall then be
required by law, without first obtaining the approval of the holders of at
least two-thirds of the number of shares of this Series of Preferred Stock
at the time outstanding (voting separately as a class together with the
holders of shares (on a one vote per share basis) of Voting Parity Stock)
given in person or by proxy at a meeting at which the holders of such
shares shall be entitled to vote separately as a class, the Company shall
not either directly or indirectly or through merger or consolidation with
any other company, (i) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock ranking prior
to the shares of this Series of Preferred Stock in rights and preferences
or (ii) approve any amendment to (or
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<PAGE>
otherwise alter or repeal) its Certificate of Incorporation (or this
resolution) which would materially and adversely change the specific terms
of this Series of Preferred Stock.
An amendment which increases the number of authorized shares of any class or
series of Preferred Stock or authorizes the creation or issuance of other
classes or series of Preferred Stock, in each case ranking junior to or on a
parity with this Series of Preferred Stock with respect to the payment of
dividends and distribution of assets upon liquidation, dissolution or winding
up, or substitutes the surviving entity in a merger or consolidation,
reorganization or other business combination for the Company, shall not be
considered to be such an adverse change.
(d) One Vote Per Share. In connection with any matter on which
holders of this Series of Preferred Stock are entitled to vote as provided
in paragraphs (b) and (c) of this Section, or any matter on which the
holders of this Series of Preferred Stock are entitled to vote as one class
or otherwise pursuant to law or the provisions of the Certificate of
Incorporation, each holder of this Series of Preferred Stock shall be
entitled to one vote for each share of this Series of Preferred Stock held
by such holder.]
[In connection with any matter on which holders of the Common
Stock, par value $.01 per share, are entitled to vote, each holder of this
Series of Preferred Stock shall be entitled to [one vote, voting together
with such Common Stock as a single class, for each share of this Series of
Preferred Stock held by such holder].]
5. No Sinking Fund. [No sinking fund will be established for the
retirement or redemption of shares of Series __ Preferred Stock.] [Insert any
applicable sinking fund provisions.]
[6. Conversion. [Insert any applicable conversion provisions.]]
[6.] [7.] Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Company, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Company, the holders of shares of the Series __ Preferred Stock shall be
entitled to receive, out of the assets of the Company, whether such assets
are capital or surplus and whether or not any dividends as such are
declared, $_____ per share plus an amount equal to all accrued and unpaid
dividend for prior Dividend Periods, and no more, before any distribution
shall be made to the holders of the Common
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<PAGE>
Stock or any other class of stock or series thereof ranking junior to the
Series __ Preferred Stock with respect to the distribution of assets. After
payment of the full amount of the liquidation preference, the holders of
shares of the Series __ Preferred Stock shall not be entitled to any
further participation.
(b) Nothing contained in this Section 6 shall be deemed to
prevent redemption of shares of the Series __ Preferred Stock by the
Company in the manner provided in Section 3. Neither the merger nor
consolidation of the Company into or with any other company, nor the merger
or consolidation of any other company into or with the Company, nor a sale,
transfer or lease of all or any part of the assets of the Company, shall be
deemed to be a liquidation, dissolution or winding up of the Company within
the meaning of this Section 6.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment
date and the place where the distributable amounts shall be payable, shall
be given by mail, postage prepaid, no less than 30 days prior to the
payment date stated therein, to the holders of record of the Series __
Preferred Stock at their respective addresses as the same shall appear on
the books of the Company.
(d) If the amounts available for distribution with respect to
the Series __ Preferred Stock and all other outstanding stock of the
Company ranking on a parity with the Series __ Preferred Stock upon
liquidation are not sufficient to satisfy the full liquidation rights of
all the outstanding Series __ Preferred Stock and stock ranking on a parity
therewith, then the holders of each series of such stock will share ratably
in any such distribution of assets in proportion to the full respective
preferential amount (which in the case of Preferred Stock may include
accumulated dividends) to which they are entitled.
IN WITNESS WHEREOF, UNOVA, Inc. has caused this Certificate to be
signed by _________________, its [President], and attested by _________________,
its [Secretary], this ____ day of ________________, 199_.
UNOVA, INC.
By: _____________________________
[Name and Title]
Attest:
___________________
-10-
<PAGE>
[Name and Title]
-11-
<PAGE>
Exhibit 4(e)
TEMPORARY CERTIFICATE - - EXCHANGEABLE FOR DEFINITIVE
ENGRAVED CERTIFICATE WHEN READY FOR DELIVERY.
<TABLE>
<S> <C> <C>
NUMBER UNOVA, INC. (the "Company") SHARES
____% SERIES ___ PREFERRED STOCK INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE CUSIP _________
(PAR VALUE $.01 PER SHARE) THIS CERTIFICATE IS TRANSFERABLE IN [NEW YORK, NY] SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
</TABLE>
THIS CERTIFIES that
S P E C I M E N
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES OF THE _____% SERIES ___ PREFERRED
STOCK (PAR VALUE $.01 PER SHARE) OF UNOVA, INC. (the "Company"), transferable on
the books of the Company in person or by duly authorized attorney upon surrender
of this certificate properly endorsed. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
WITNESS the corporate seal of the said Company and the signatures of its
duly authorized officers.
Dated
General Counsel and Secretary President and Chief Executive Officer
Countersigned and Registered:
_______________________________________
_______________________________________,
BY TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
UNOVA, INC.
The Company will furnish without charge to any shareholder who so requests,
a statement of the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Any such request should be made to the Company.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ________ Custodian _________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of Under Uniform Gifts to Minors Act
survivorship and not as tenants in ______________________________
common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, ______________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
__________________________________________________________________________Shares
________________________________________________________________________________
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
________________________________________________________________________Attorney
________________________________________________________________________________
to transfer the said shares on the books of the within-named Company with full
power of substitution in the premises.
Dated: ______________ _______________________________________
_______________________________________
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of the
Certificate in every particular,
without alteration or enlargement or
any change whatever. The signature(s)
should be guaranteed by a commercial
bank or trust company or by a New York,
Midwest or Pacific Stock Exchange
member or firm, whose signature is
known to the transfer office.
<PAGE>
[CONVERSION NOTICE]
To convert this Security into Common Stock of the Company, check the box.[ ]
To convert only part of this Security, state the amount: $___________
If you want the stock certificate made out in another person's name fill in
the form below:
PLEASE INSERT OTHER PERSON'S SOCIAL SECURITY OR TAX I.D. NO.
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name and address including postal zip code)
________________________________________________________________________________
________________________________________________________________________________
Dated: ___________________ _______________________________________
_______________________________________
NOTICE: The signature(s) to this
conversion notice must correspond with
the name(s) as written upon the face of
the Certificate in every particular,
without alteration or enlargement, or
any change whatever. The signature(s)
should be guaranteed by a commercial
bank or trust company, or by a New
York, Midwest or Pacific Stock Exchange
member or firm, whose signature is
known to the transfer office.
<PAGE>
Exhibit 4(f)
- --------------------------------------------------------------------------------
DEPOSIT AGREEMENT
dated as of ________ __, ____
between
UNOVA, INC.
[NAME OF DEPOSITARY]
and
THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN
- --------------------------------------------------------------------------------
<PAGE>
DEPOSIT AGREEMENT
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _____% Series ___ Preferred
Stock, par value $.01 per share, of UNOVA, INC. with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean UNOVA, Inc., a Delaware corporation, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, a _____________ , and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
______ interest in a share of the Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
____________________, ____________________, ____________________, at which at
any particular time its depositary receipt business shall be administered.
-2-
<PAGE>
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's _____% Series ___ Preferred
Stock, par value $.01 per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK;
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
-----------------------------
shall be printed, lithographed, typewritten, mimeographed or engraved or
otherwise reproduced in any manner and shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. As set forth in Section 2.09, all or a portion of
the Definitive Receipts may be represented by one or more book-entry receipts
(each, a "Book-Entry Receipt"). Pending the preparation of definitive Receipts,
the Depositary, upon the written order of the Company delivered in compliance
with Section 2.02, shall execute and deliver temporary Receipts which are
printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the third paragraph of Section
2.02, without charge to the holder. Upon surrender for cancellation of any one
or more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without
-3-
<PAGE>
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
--------
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
-------- -------
be registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions with respect to the Stock or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates
representing the Stock to be deposited. Such certificate or certificates
representing the Stock shall be properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument of
-4-
<PAGE>
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order of
the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares relating to such deposited Stock.
All Stock deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
representing the Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares relating to the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
______ shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect
-------------------
to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption, by first class mail, postage
prepaid, not less than 40 or more than 70 days prior to the date fixed for
redemption of Stock in accordance with Section 3(b) of the Certificate. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price of the Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the Depositary
Shares relating to such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares relating to the Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
Record Holders of the Depositary Shares to be so redeemed, at the addresses of
such holders as they appear on the records of the Depositary; provided, however,
-------- -------
neither failure to mail
-5-
<PAGE>
any such notice to one or more such holders nor any defect in any notice to one
or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; (iii) the redemption
price; (iv) that dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accrue and accumulate at the close of
business on such Redemption Date; (v) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; and (vi) if a date other than the Redemption Date, the date from
and after which the Stock and Depositary Shares shall no longer be deemed to be
outstanding. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot, pro
rata or such other method as may be determined by the Depositary to be
equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed to be no
longer outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to the proportionate part of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, paid with respect to such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accumulated on the shares of Stock to be so redeemed and
have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption; provided, however, that such Replacement Receipt
-------- -------
shall be issued only in denominations of whole Depositary Shares and cash will
be payable in respect of fractional interests.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Depositary Shares upon any surrender of
the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly authorized
-6-
<PAGE>
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer; provided, however, that except as otherwise provided herein or in any
Book-Entry Receipt, each Book-Entry Receipt may be transferred only in whole and
only to the Depositary, to another nominee of the Depositary, to a successor
depository, or to a nominee of a successor depository. Thereupon the Depositary
shall execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person entitled
thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
- -----------------------------------------
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. The Depositary shall give
prompt notice of such action and the certificate numbers to the Registrar for
the purposes of recording such split-up or consolidation.
Unless the Depositary Shares have previously been called for
redemption, any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Receipts evidencing Depositary Shares therefor. If a
Receipt or Receipts delivered by a holder to the Depositary in connection with
such withdrawal shall evidence in the aggregate a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Sections 2.04 and 3.02) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the Stock and money and other property
being withdrawn may be made by delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legend or recitals or changes
not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or
-7-
<PAGE>
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular shares of Stock are
subject.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with the rules and regulations of any governmental body,
the New York Stock Exchange, any applicable self regulatory body or such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, New York Stock Exchange or under any provision
of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
-------------------
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and
-8-
<PAGE>
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the holder's furnishing of the Depositary with reasonable
indemnification satisfactory to such Depositary and the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.09. Book-Entry Receipts. (a) All or a portion of the
-------------------
Receipts may be represented by one or more Book-Entry Receipts deposited with
[the Depository Trust Company] (the "Depository") and registered in the name of
[Cede & Co.], a nominee of the Depository. Each Book-Entry Receipt shall bear
such legend or legends as may be required by the Depository in order for it to
accept the Depositary Shares for its book-entry settlement system. Except as
provided for in Section 2.09(b) hereof, no person acquiring Receipts with book-
entry settlement through the Depository shall receive or be entitled to receive
definitive Receipts. Ownership of beneficial interests in the Depositary Shares
shall be shown on, and the transfer of such ownership shall be affected through,
records maintained by (i) the Depository or its nominee for each Book-Entry
Receipt, or (ii) institutions that have accounts with the Depository (such
institution, with respect to a Depositary Share in its account, a
"Participant").
(b) If the Depository subsequently ceases to make its book-entry
system available for the Depositary Shares, the Company may instruct the
Depository regarding making other arrangements for book-entry settlement. In
the event that the Depositary Shares are not eligible for, or it is no longer
necessary to have the Depositary Shares available in, book-entry form, the
Depositary shall provide written instructions to the Depository to deliver to
the Depositary for cancellation each Book-Entry Receipt, and the Company shall
instruct the Depository to deliver to the Depositary definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive Receipts shall
be in the form amended hereto as Exhibit A with appropriate insertions,
modification and omissions, as provided above.
-9-
<PAGE>
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to obtain such
guarantees of signature, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may deem
reasonably necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or exchange, of any
Depositary Share or the withdrawal of any Stock underlying Depositary Shares or
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other information is filed or
such certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
----------------------------------------------
of Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
--------------------
and warrants to the Depositary that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of the Receipts.
SECTION 3.04. Warranty as to Receipts. The Depositary hereby
-----------------------
represents and warrants that the Receipts, when issued, will be legal, valid and
binding obligations of the Depositary, enforceable against the Depositary in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Such representation and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
-10-
<PAGE>
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders; provided, however, that in case the Company or the Depositary shall be
-------- -------
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next succeeding distribution to record holders of Receipts.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
-----------------------------
shall receive any distribution other than cash with respect to the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares held
by such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such Record
Holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or governmental
charges) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act or
do not need to be registered.
-11-
<PAGE>
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the Record Holders of Depositary Shares
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such rights,
preferences or privileges unless the Company shall have provided an opinion of
counsel to the effect that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders are exempt from registration under the provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights,
-12-
<PAGE>
preferences or privileges to be made available to the holders of Depositary
Shares, the Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Depositary Shares. (i) Whenever any cash dividend or other cash
- ----------------------------
distribution shall become payable or any distribution other than cash shall be
made, (ii) if rights, preferences or privileges shall at any time be offered,
with respect to the Stock, (iii) whenever the Depositary shall receive notice of
(a) any meeting at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice, or (b) any election by the Company to
redeem any shares of Stock, or (iv) whenever the Depositary and the Company
shall decide it is appropriate) the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of the Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Depositary Shares
a notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Depositary Share, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting held with respect to such Stock unless directed to the contrary by the
holders of all the Depositary Shares) to the extent of the Stock underlying the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or
- ------------------------------------------
liquidation value,
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<PAGE>
split-up, combination or other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary to reflect fully the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Anything to the contrary herein or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date or
any such change in par or stated value, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation, consolidation or sale, to the extent that holders of Stock
had the right, prior to or on the applicable effective date, to convert,
exchange or surrender shares of Stock into or for other stock, securities,
property or cash, to surrender such Receipts to the Depositary with instructions
to convert, exchange or surrender the Stock represented thereby only into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented by such
Receipts has been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary will forward to
-------------------
Record Holders of Receipts, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of Stock or Receipts.
SECTION 4.08. List of Holders. Promptly upon request from time to
---------------
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Depositary Shares are registered on the books of the Depositary
or Registrar, as the case may be.
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<PAGE>
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall maintain at the Depositary's Offices or at any Registrar's
Office, facilities for the execution and delivery, surrender and exchange of
Receipts and the registration and registration of transfer of Depositary Shares
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, all in accordance with the provisions of this Deposit
Agreement. The Depositary shall have complete access to all books and records
maintained on the Company's behalf at such Depositary's Offices or at such
Registrar's Offices.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If such Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, any Registrar or the Company. Neither the
- -----------------------------------------------------------------
Depositary nor any of the Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Depositary Share if by reason of
any provision of any present or future
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<PAGE>
law, or regulation thereunder, of the United States of America or of any other
governmental authority or, in the case of the Depositary, any Depositary's Agent
or any Registrar, by reason of any provision, present or future, of the
Company's Certificate of Incorporation (including the Certificate) or by reason
of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, any Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Depositary Share (i) by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement provide shall or
may be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in the
case of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the gross negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
any Registrar and the Company. Neither the Depositary nor any Depositary's
- -----------------------------
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Depositary
Shares other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith.
The Depositary undertakes and shall cause any Registrar to undertake, to perform
such duties and only such duties as are specifically set forth in this Deposit
Agreement using its reasonable best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall
-16-
<PAGE>
be read into this Deposit Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company against any liability which may arise out
of acts performed or omitted by the Depositary or its agents due to its or their
gross negligence or bad faith. The Depositary, any Depositary's Agents, any
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Depositary Shares. The Depositary may also act
as transfer agent or registrar of any of the securities of the Company and its
affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
- -----------------------
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the Record Holders
of all outstanding Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate
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<PAGE>
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof, transmit to the Record Holder of Depositary Shares, in each
case at the address furnished to it pursuant to Section 4.08, all notices,
reports and communications (including without limitation financial statements)
required by law, the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are listed or by the Company's
Certificate of Incorporation (including the Certificate) to be furnished by the
Company to holders of the Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of negligence, willful misconduct or bad faith on the respective
parts of any such person or persons, or (b) by the Company or any of its agents,
or (ii) the offer, sale or registration of the Depositary Shares or the Stock
pursuant to the provisions hereof. The obligations of the Company set forth in
this Section 5.06 shall survive any succession of any Depositary, Registrar or
Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Receipts, any redemption of the Stock at the option of
the Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. The Depositary may refuse to effect any
transfer of a Receipt or any withdrawal of Stock evidenced hereby until all such
taxes and charges with respect to such receipt or stock are paid by the holders
thereof. If, at the request of a holder of a Depositary Share, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present
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<PAGE>
its statement for charges and expenses to the Company once every three months or
at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the existing holders of
Depositary Shares shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby. In no event shall any amendment impair
the right, subject to the provisions of Sections 2.05 and 2.06 hereof, of any
owner of any Depositary Shares to surrender any Receipt evidencing such
Depositary Shares to the Depositary with instructions to deliver to the holder
the Stock and all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law or the rules and
regulations of any governmental body, agency or commission, the depository for
any Book-Entry Receipts, the New York Stock Exchange or any applicable stock
exchange.
SECTION 6.02. Termination. This Deposit Agreement may be terminated
-----------
by the Company or the Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed and any accumulated and unpaid dividends on the
Stock represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to Section 2.03, (ii) all the Stock has been withdrawn
pursuant to Section 2.05 or (iii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.01 or 4.02, as
applicable. Whenever the Deposit Agreement has been terminated pursuant to
(iii) above, the Depositary will mail notice of such termination to the record
holders of all Depositary Shares then outstanding at least 30 days prior to the
date fixed in that notice for termination of the Deposit Agreement. If any
Depositary Shares remain outstanding after the date of termination, the
Depositary thereafter will discontinue the transfer of Depositary Shares, will
suspend the distribution of dividends to the owners thereof, and will not give
any further notices
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<PAGE>
(other than notice of such termination) or perform any further acts under this
Deposit Agreement, except that the Depositary will continue (i) to collect
dividends on the Stock and any other distributions with respect thereto and (ii)
to deliver or cause to be delivered shares of Stock, together with such
dividends and distributions, or principal and interest, and the net proceeds of
any sales of rights, preferences, privileges or other property (other than real
property) in exchange for Depositary Shares surrendered. At any time after the
expiration of three years from the date of termination, the Depositary may sell
the Stock then held by it at a public or private sale, at such place or places
and upon such terms as it deems proper and may thereafter hold the net proceeds
of such sale, without liability for interest, for the pro rata benefit of the
owners of the Depositary Shares which have not theretofore been surrendered.
Subject to applicable escheat laws, any monies set aside by the Company in
respect of any payment with respect to the Stock represented by the Depositary
Shares, or dividends thereon, and unclaimed at the end of three years from the
date upon which such payment is due and payable shall revert to the general
funds of the Company, after which reversion the holders of such Depositary
Shares shall look only to the general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
----------------------------
is for the exclusive benefit of the parties hereto and their respective
successors hereunder and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
------------------------
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
-20-
<PAGE>
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram or
telex confirmed by letter, addressed to the Company at 360 North Crescent Drive,
Beverly Hills, California 90210, telephone (310) __________, facsimile (310)
__________, Attention: ____________, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office,
at________________________________, telephone (___) _____-_________, fascimile
(___) _____-_________, Attention: ___________, or at any other address and to
the attention of any other person of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any Record Holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, telegram or telex (and
confirmed by letter in the case of a telegram or telex), to such Record Holder
at the address of such Record Holder as such address appears on the books of the
Depositary or if such holder shall have filed with the Depositary a written
request that notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time, with the prior approval of the Company, appoint Depositary's Agents to act
in any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
-------------------------------
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
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<PAGE>
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND EACH RECEIPT
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
-------------------------------
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depository Share.
SECTION 7.09. Headings. The headings of articles and sections in
--------
this Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as part of
this Deposit Agreement or the Receipts or as having any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
UNOVA, INC.
By
________________________________
[Name and Title]
_________________________________,
As Depositary
By________________________________
Authorized Officer
-22-
<PAGE>
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __% SERIES ____ PREFERRED STOCK
UNOVA, INC.
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in New York, New York
______________________________, as Depositary, (the "Depositary"),
hereby certifies that ______________________________ is the registered owner of
____________________ Depositary Shares ("Depositary Shares"), each Depositary
Share representing an interest in one share of ____% Series ____ Preferred
Stock, par value $.01 per share (the "Stock"), of UNOVA, Inc., a Delaware
corporation (the "Company"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of
____________________, 199_ (the "Deposit Agreement"), between the Company, the
Depositary and all holders from time to time of Depositary Receipts. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the
A-1
<PAGE>
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorize officer thereof.
Dated: ______________ Depositary
By:
____________________________
Authorized Officer
Registrar
By:
____________________________
Authorized Officer
A-2
<PAGE>
[GENERAL FORM OF REVERSE OF RECEIPT]
UNOVA, INC.
UNOVA, INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO SO REQUESTS A
COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE PORTIONS OF THE
CERTIFICATE OF INCORPORATION ESTABLISHING THE POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK OR SERIES THEREOF WHICH UNOVA, INC. IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS OF
SUCH CLASS. ANY SUCH REQUEST IS TO BE ADDRESSED TO UNOVA, INC., 360 NORTH
CRESCENT DRIVE, BEVERLY HILLS, CALIFORNIA 90210, ATTENTION: ______________.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________ Custodian ________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act ___________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto ______________________________
(Please insert social security or other
identifying number of assignee)
________________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
A-3
<PAGE>
_____________________ Depositary Shares represented by the within receipt and
all rights thereunder, and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer said Depositary Shares on the books of
the within-named Depositary with full power of substitution in the premises.
Dated: ____________________
___________________________________
NOTICE. The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
this instrument in every
particular, without alteration or
enlargement or any change whatever.
A-4
<PAGE>
Exhibit 4(h)
================================================================================
UNOVA, INC.
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
__________
INDENTURE
Dated as of ____________, 199_
Providing for Issuance of Senior
Debt Securities in Series
================================================================================
<PAGE>
UNOVA, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
<TABLE>
<CAPTION>
<S> <C>
(S) 310(a) (1) . . . . . . . . . . . . 609
(a) (2) . . . . . . . . . . . . 609
(a) (3) . . . . . . . . . . . . Not Applicable
(a) (4) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 608
610
(S) 311(a) . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . 613
(S) 312(a) . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . 702(c)
(S) 313(a) . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . 703(b)
(S) 314(a) . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 102
(S) 315(a) . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . 514
(S) 316(a) . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . 104(c)
(S) 317(a)(1) . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . 504
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
(b) . . . . . . . . . . . . 1003
(S) 318(a) . . . . . . . . . . . . 107
- --------------------
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
iii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<CAPTION>
<S> <C> <C>
Section 101. Definitions.............................. 1
Section 102. Compliance Certificates and Opinions.....10
Section 103. Form of Documents Delivered to Trustee...11
Section 104. Acts of Holders; Record Dates............12
Section 105. Notices, Etc., to Trustee and Company....13
Section 106. Notice to Holders; Waiver................13
Section 107. Conflict with Trust Indenture Act........14
Section 108. Effect of Headings and Table of
Contents.................................14
Section 109. Successors and Assigns...................14
Section 110. Separability Clause......................15
Section 111. Benefits of Indenture....................15
Section 112. Governing Law............................15
Section 113. Legal Holidays...........................15
ARTICLE TWO
Security Forms
Section 201. Forms Generally..........................15
Section 202. Form of Face of Security.................16
Section 203. Form of Reverse of Security..............18
Section 204. Additional Provisions Required
in Book-Entry Security...................23
Section 205. Form of Trustee's Certificate of
Authentication...........................24
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.....24
Section 302. Denominations............................27
Section 303. Execution, Authentication, Delivery and
Dating...................................27
Section 304. Temporary Securities.....................30
Section 305. Registration, Registration of
Transfer and Exchange....................31
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities...............................33
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 307. Payment of Interest; Interest Rights
Preserved................................34
Section 308. Persons Deemed Owners....................36
Section 309. Cancellation.............................36
Section 310. Computation of Interest..................36
Section 311. CUSIP Numbers............................37
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture..37
Section 402. Application of Trust Money...............38
ARTICLE FIVE
Remedies
Section 501. Events of Default........................39
Section 502. Acceleration of Maturity;
Rescission and Annulment.................41
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.........43
Section 504. Trustee May File Proofs of Claim.........43
Section 505. Trustee May Enforce Claims Without
Possession of Securities.................44
Section 506. Application of Money Collected...........44
Section 507. Limitation on Suits......................45
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest..46
Section 510. Rights and Remedies Cumulative...........46
Section 511. Delay or Omission Not Waiver.............47
Section 512. Control by Holders.......................47
Section 513. Waiver of Past Defaults..................47
Section 514. Undertaking for Costs....................48
Section 515. Waiver of Usury, Stay or Extension Laws..48
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities......48
Section 602. Notice of Defaults.......................49
Section 603. Certain Rights of Trustee................49
Section 604. Not Responsible for Recitals or
Issuance of Securities...................51
Section 605. May Hold Securities......................51
Section 606. Money Held in Trust......................51
Section 607. Compensation and Reimbursement...........51
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 608. Disqualification; Conflicting Interests..52
Section 609. Corporate Trustee Required; Eligibility..53
Section 610. Resignation and Removal; Appointment of
Successor................................53
Section 611. Acceptance of Appointment by Successor...55
Section 612. Merger, Conversion, Consolidation or
Succession to Business...................57
Section 613. Preferential Collection of Claims
Against Company..........................57
Section 614. Appointment of Authenticating Agent......57
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names
and Addresses of Holders.................60
Section 702. Preservation of Information;
Communications to Holders................60
Section 703. Reports by Trustee.......................61
Section 704. Reports by Company.......................61
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms....................61
Section 802. Successor Substituted....................62
Section 803. Officers' Certificate and Opinion
of Counsel...............................63
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.......................63
Section 902. Supplemental Indentures with Consent
of Holders...............................65
Section 903. Execution of Supplemental Indentures.....66
Section 904. Effect of Supplemental Indentures........66
Section 905. Conformity with Trust Indenture Act......66
Section 906. Reference in Securities to
Supplemental Indentures..................67
</TABLE>
iii
<PAGE>
ARTICLE TEN
Covenants
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1001. Payment of Principal, Premium
and Interest............................67
Section 1002. Maintenance of Office or Agency.........67
Section 1003. Money for Securities Payments to
Be Held in Trust........................68
Section 1004. Statement by Officers as to Default.....69
Section 1005. Existence...............................70
Section 1006. Maintenance of Properties...............70
Section 1007. Payment of Taxes and Other Claims.......70
Section 1008. Limitation on Liens.....................71
Section 1009. Limitation on Sales and Leasebacks......72
Section 1010. Waiver of Certain Covenants.............73
Section 1011. Calculation of Original Issue Discount..74
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article................74
Section 1102. Election to Redeem: Notice to Trustee...74
Section 1103. Selection by Trustee of Securities
to Be Redeemed..........................75
Section 1104. Notice of Redemption....................76
Section 1105. Deposit of Redemption Price.............76
Section 1106. Securities Payable on Redemption Date...77
Section 1107. Securities Redeemed in Part.............77
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article................78
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.........................78
Section 1203. Redemption of Securities for
Sinking Fund............................78
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance.....................79
Section 1302. Defeasance and Discharge................79
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1303. Covenant Defeasance.................... 80
Section 1304. Conditions to Defeasance or
Covenant Defeasance.................... 81
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions......... 84
Section 1306. Reinstatement.......................... 84
</TABLE>
- --------------------
NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
v
<PAGE>
INDENTURE, dated as of December __, 1997, between UNOVA, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 360 North Crescent
Drive, Beverly Hills, California, and, The First National Bank of Chicago, a
national banking association, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
unsubordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," in respect of any Sale and Leaseback Transaction,
means, as of the time of determination, the total obligation (discounted to
present value at the rate per annum equal to the discount rate which would be
applicable to a capital lease obligation with like term in accordance with
generally accepted accounting principles) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during
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<PAGE>
the remaining portion of the initial term of the lease included in such Sale and
Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
-3-
<PAGE>
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (ii) all Investments in Unrestricted Subsidiaries, all as set
forth on the most recent consolidated balance sheet of the Company and computed
in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at One First National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Services Division, except that, with respect to
presentation of the Securities for payment or registration of transfers or
exchanges and the location of the register, such term means the office or agency
of the Trustee at which at any particular time its corporate agency business
shall be conducted, which at the date of original execution of this Indenture is
located at c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor-Window 2, New York, New York 10005.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all Debt having a maturity of more than 12 months
from the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendable beyond
-4-
<PAGE>
12 months from such date at the option of the borrower, but excluding any such
Debt owed to the Company or a Restricted Subsidiary.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment," with respect to any Person, means any obligations or
other securities of, capital contribution to, or investment in such Person, in
each case in the amount that would be reflected from time to time on a balance
sheet of the Company prepared in accordance with generally accepted accounting
principles.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or
-5-
<PAGE>
other security arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Operating Property" means any real property or equipment located
within the United States and owned by, or leased to, the Company or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 1.0% of Consolidated Net Assets.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to Section
1104 of this Indenture or provision therefor satisfactory to the Trustee
has been made;
-6-
<PAGE>
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of
the
-7-
<PAGE>
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or
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<PAGE>
assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing to the Company or any Subsidiary of any Operating
Property, which Operating Property has been or is to be sold or transferred by
the Company or such Subsidiary to such Person.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"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" 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 the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"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,
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<PAGE>
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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
-10-
<PAGE>
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
-11-
<PAGE>
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required
-12-
<PAGE>
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to be taken
by the Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Services Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each
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<PAGE>
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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<PAGE>
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
-15-
<PAGE>
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code and the
------------------------------------------- --------------------
regulations thereunder.]
- ------------------------
UNOVA, INC.
............................................
No. . . . . . $. . . . . . .
CUSIP No.______________
UNOVA, Inc., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ................................., or registered assigns, the
principal sum of ........................... Dollars on
........................... [if the Security is to bear interest prior to
--------------------------------------------
Maturity, insert --, and to pay interest thereon from ........... or from the
- ----------------
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ............. and
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<PAGE>
............ in each year, commencing ........., at the rate of .......... % per
annum, until the principal hereof is paid or made available for payment [if
--
applicable, insert -- and (to the extent that the payment of such interest shall
- ------------------
be legally enforceable) at the rate of .... % per annum on any overdue principal
and premium and on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
.......... or ........ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
-----------------------------------------------------------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ......% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
-17-
<PAGE>
Payment of the principal of (and premium, if any) and [if applicable,
---------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in ............., in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
----------------------
provided, however, that at the option of the Company payment of interest may be
- -------- -------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire
instructions.]
[If the Security is payable in a foreign currency, insert -- the
------------------------------------------------- ------
appropriate provision.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UNOVA, INC.
By.......................
Title:
Attest:
...........................
Title:
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________, 1997 (herein called the
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<PAGE>
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$..........].
[If applicable, insert -- The Securities of this series are subject to
----------------------
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
---
applicable, insert --(1) on ........... in any year commencing with the
- ------------------
year...... and ending with the year .......... through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after .......... 19..], as a whole or in
part, at the election of the Company, [at Redemption Prices determined as
follows:] [at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ................, _%, and if
redeemed] during the 12-month period beginning ........ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ---------
and thereafter at a Redemption Price equal to ..........% of the principal
amount,] together in the case of any such redemption [if applicable, insert --
----------------------
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
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<PAGE>
business on the relevant Regular Record Dates or Special Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject
---------------------
to redemption upon not less than 30 nor more than 60 days' notice by mail, (1)
on .......... in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ........], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
.......... of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ........% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
Notwithstanding the foregoing, the Company may not, prior to
.........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of
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<PAGE>
moneys borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than .......% per annum.]
[The sinking fund for this series provides for the redemption on
........ in each year beginning with the year ......... and ending with the year
.......... of [not less than $............ ("mandatory sinking fund") and not
more than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
------------------------------------------------
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
---------------------
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
-------------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
---------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
-21-
<PAGE>
[If the Security is an Indexed Security, insert -- the appropriate
-----------------------------------------------
provision.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the
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<PAGE>
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
Section 204. Additional Provisions Required in
Book-Entry Security.
---------------------------------
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
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Section 205. Form of Trustee's Certificate of
Authentication.
--------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _____________ THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
----------
By...........................
Authorized Signatory
--------------------
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in
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lieu of, other Securities of the series pursuant to Section 304, 305, 306,
906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
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 other terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, formula or other method, the index, formula or other method by
which such amounts shall be determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the other terms
and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(14) the application, if any, of Section 1302 or 1303 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
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(16) any additional, modified or different covenants applicable to
one or more particular series of Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
---------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that, in the case of Securities of
-------- -------
a series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in
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the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, (ii)
shall be registered in the name of the Depositary for such Book-Entry Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its designation
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and at all times while it serves as Depositary, be a clearing agency registered
under the Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depositary and
the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or
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agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver or make available for delivery in exchange therefor one
or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 305. Registration, Registration of
Transfer and Exchange.
-----------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver or make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and
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entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as such Depositary shall direct.
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Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
Section 306. 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 or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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
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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 307. Payment of Interest; Interest Rights
Preserved.
------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 1002; provided, however, that at the option of the Company, interest
-------- -------
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid
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in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by the Trustee and such
cancellation shall be noted conspicuously on each such Security. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Unless the Company directs otherwise by a Company Order, all
cancelled Securities held by the Trustee may be destroyed, but the Trustee shall
not be obligated to so destroy such Securities, and, if any such cancelled
Security is destroyed, the Trustee shall furnish to the Company a certificate
with respect to such destruction.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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Section 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
--------
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.
-----------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii) such
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for
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whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to Securities of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after 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 at least 25% 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
(5) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or
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evidenced, any indebtedness for money borrowed of the Company or any
Subsidiary, whether such indebtedness now exists or shall hereafter be
created, if (A) such default either (1) results from the failure to pay the
principal of any such indebtedness at its stated maturity or (2) relates to
an obligation other than the obligation to pay the principal of such
indebtedness at its stated maturity and results in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, (B) the principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at stated maturity or
the maturity of which has been so accelerated, aggregates $50,000,000 or
more at any one time outstanding and (C) such indebtedness is not
discharged, or such acceleration is not rescinded or annulled within a
period of 30 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 at least 25% in principal amount of Outstanding Securities a
written notice specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to cause such
indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
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(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
------------------------------------
If an Event of Default (other than an Event of Default described in
clause 6 or 7 of Section 501) with respect to 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 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of 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, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 6 or 7 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due and
payable without need of any declaration or other act on the part of the Trustee
or any Holder.
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Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian,
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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 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
Section 505. 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 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
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SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee before or 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
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Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. 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 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 and as otherwise provided in Section 507, 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.
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Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including counsel fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
--------
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, the Trustee or the Holders of 10% aggregate
principal amount of the Outstanding Securities of any series.
Section 515. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
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conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
- -------- -------
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
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(d) 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(i) 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.
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Section 604. Not Responsible for Recitals or
Issuance of Securities.
-------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by
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any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder and the
costs and expenses of enforcing this right of indemnification.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting
Interests.
-----------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the
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Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
Section 609. Corporate Trustee Required;
Eligibility.
---------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and an office in the
Borough of Manhattan, The City of New York at which at any particular time the
Trustee's corporate trust business may be administered. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any Federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal;
Appointment of Successor.
------------------------
(a) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
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the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
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the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by
Successor.
----------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver
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to such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; provided, however, that to the extent that such
property and money is not held by the Trustee in trust for the benefit of the
Holders of particular Securities, such retiring Trustee shall transfer and
deliver to such successor Trustee such property and money upon payment of its
charges hereunder.
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<PAGE>
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company.
-----------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial
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<PAGE>
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
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provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _______________
THE FIRST NATIONAL BANK OF
CHICAGO,
--------------------------
As Trustee
----------
By........................
As Authenticating Agent
-----------------------
By........................
Authorized Officer
------------------
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<PAGE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding January 1 or July 1, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 702. Preservation of Information;
Communications to Holders.
----------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of then shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
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Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of the first issuance
deliver to Holders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms.
-----------------------------------
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or the
successor Person or purchaser shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia
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<PAGE>
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, the Person formed by or resulting or
surviving therefrom or which shall have received the properties and assets
of the Company substantially as an entirety would have outstanding any Debt
secured by any Mortgage on any Operating Property, or on any shares of
stock or Debt of any Restricted Subsidiary, which Debt could not at such
time be incurred by such Person under Section 1008 without equally and
ratably securing the Securities, the Company, or such Person, prior to such
consolidation, merger, conveyance, transfer or lease, will secure the
Outstanding Securities, equally and ratably with (or prior to) the Debt
secured by such Mortgage; and
(4) if a supplemental indenture is to be executed in connection with
such consolidation, merger, transfer or lease, the Company shall have
delivered to the Trustee (A) an Officers' Certificate and (B) an Opinion of
Counsel attesting to compliance with these provisions.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
with or into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named
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<PAGE>
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Section 803. Officers' Certificate and
Opinion of Counsel.
-------------------------
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.
-------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
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principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form or in the form of Book-
Entry Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
--------
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which is mistaken or may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this
--------
clause (10), other than with respect to a mistaken provision, shall not
adversely affect the interests of the Holders of Securities of any series
in any material respect.
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Section 902. Supplemental Indentures with Consent
of Holders.
------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
--------
however, that no such supplemental indenture shall, without the consent of the
- -------
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or adversely affect the right of the Holder
of any Security to require the Company to repurchase such Securities, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any percentage set forth in such Sections
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
-------- -------
deemed
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<PAGE>
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 906. Reference in Securities to
Supplemental Indentures.
--------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities
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of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
-------- -------
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to
Be Held in Trust.
--------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct
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any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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<PAGE>
Section 1005. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the presentation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary or appropriate in connection with its business;
provided, however, that nothing in this Section shall prevent the Company from
- -------- -------
discontinuing the operation or maintenance of, or selling, abandoning or
otherwise disposing of, any of such properties if such discontinuance or
disposal is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1008. Limitation on Liens.
-------------------
Unless otherwise indicated with respect to any series of Securities,
the Company agrees as to each series of Securities, that it will not, and will
not permit any Restricted Subsidiary to, create, incur, issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed ("Debt"), secured by a Mortgage upon any
Operating Property, or upon shares of capital stock or Debt issued by any
Restricted Subsidiary and owned by the Company or any Restricted Subsidiary,
whether owned at the date of this Indenture or hereafter acquired, without
effectively providing concurrently that the Outstanding Securities (together
with, if the Company shall so determine, any other Debt of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities) shall be secured equally and ratably with or, at
the option of the Company, prior to such Debt so long as such Debt shall be so
secured, unless, at the time of such creation, incurrence, issuance, assumption
or guarantee, after giving effect thereto and to the retirement of any Debt
which is concurrently being retired, the aggregate amount of all such Debt
secured by Mortgages which would otherwise be subject to such restrictions
(other than any Debt secured by Mortgages permitted in Clauses (1) through (7)
of this Section 1008) plus all Attributable Debt of the Company and its
Restricted Subsidiaries in respect of Sale and Leaseback Transactions with
respect to Operating Properties (with the exception of such Sale and Leaseback
Transactions permitted under Clauses (1) through (4) of Section 1009) would not
exceed the greater of (i) 10% of Consolidated Net Assets and (ii) $150,000,000;
provided, however, that this Section shall not apply to, and there shall be
- -------- -------
excluded from Debt in any computation under this Section, Debt secured by:
(1) Mortgages on property existing at the time of the acquisition
thereof;
(2) Mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
provided that any such Mortgage does not extend to any property owned by
the Company or any Restricted
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<PAGE>
Subsidiary immediately prior to such merger, consolidation, sale, lease or
disposition;
(3) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(4) Mortgages in favor of the Company or a Restricted Subsidiary;
(5) Mortgages to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or to
secure Debt incurred to provide funds for any such purpose, provided that
the commitment of the creditor to extend the credit secured by any such
Mortgage shall have been obtained not later than 365 days after the later
of (A) the completion of the acquisition, construction, development or
improvement of such property or (B) the placing in operation of such
property;
(6) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments; and
(7) Mortgages existing on the date of this Indenture or any extension,
renewal, replacement or refunding of any Debt secured by a Mortgage
existing on the date of this Indenture or referred to in clauses (1) to (3)
or (5) of this Section 1008, provided that the principal amount of Debt
secured thereby and not otherwise authorized by clauses (1) to (3) or (5)
shall not exceed the principal amount of Debt, plus any premium or fee
payable in connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal, replacement
or refunding.
Section 1009. Limitation on Sales and Leasebacks.
----------------------------------
Unless otherwise indicated with respect to any series of Securities,
the Company agrees as to each series of Securities, that it will not, and it
will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any Operating Property unless:
(1) the Sale and Leaseback Transaction is solely with the Company or
another Restricted Subsidiary;
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<PAGE>
(2) the lease is for a period not in excess of twenty-four months,
including renewals;
(3) the Company or such Restricted Subsidiary would (at the time of
entering into such arrangement) be entitled as described in clauses (1)
through (7) of Section 1008, without equally and ratably securing the
Securities of each series then outstanding, to create, incur, issue, assume
or guarantee Debt secured by a Mortgage on such Operating Property in the
amount of the Attributable Debt arising from such Sale and Leaseback
Transaction;
(4) the Company or such Restricted Subsidiary within 365 days after
the sale of such Operating Property in connection with such Sale and
Leaseback Transaction is completed, applies an amount equal to the greater
of (i) the net proceeds of the sale of such Operating Property or (ii) the
fair market value of such Operating Property to (A) the retirement of
Securities, other Funded Debt of the Company ranking on a parity with the
Securities or Funded Debt of a Restricted Subsidiary or (B) the purchase of
Operating Property; or
(5) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all
other Sale and Leaseback Transactions entered into after the date of this
Indenture (other than any such Sale and Leaseback Transactions as would be
permitted as described in clauses (1) through (4) of this Section 1009),
plus the aggregate principal amount of Debt secured by Mortgages on
Operating Properties then outstanding (not including any such Debt secured
by Mortgages described in clauses (1) through (7) of Section 1008) which do
not equally and ratably secure such Outstanding Securities (or secure such
Outstanding Securities on a basis that is prior to other Debt secured
thereby), would not exceed the greater of (i) 10% of Consolidated Net
Assets and (ii) $150,000,000.
Section 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1009, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such
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<PAGE>
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1011. Calculation of Original Issue Discount.
--------------------------------------
If the Trustee is requested or required to send Form 1099 (or any
successor form) to Holders of Original Issue Discount Securities, 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.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
------------------------
case of any redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such
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Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
----------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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<PAGE>
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to 12:00 noon New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
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Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
-------- -------
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver or make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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<PAGE>
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
-------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying
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<PAGE>
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
---------------------------------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1302 (if applicable) or Section 1303 (if
applicable) applied to the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to any series of Securities the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series
on and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
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represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1304 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and such obligations as shall be ancillary thereto, (C) the rights, powers,
trusts, duties, immunities and other provisions in respect of the Trustee
hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with respect
to the Securities of such series. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities, the Company shall be released from
its obligations under Sections 801, 1008 and 1009 (and any covenant made
applicable to such Securities pursuant to Section 301 and the occurrence of an
event specified in Section 501(4) (with respect to any of Sections 801, 1008 or
1009) (and any other Event of Default applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision) shall not be
deemed to be an Event of Default with respect to the Outstanding Securities of
such series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and such Securities shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Sections 801, 1008 or 1009 (and any other covenant made
applicable to such Security pursuant to Section 301), but shall continue to be
deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with
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<PAGE>
respect to the Outstanding Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of any reference in any such Section or such
other covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant
Defeasance.
------------------------------------
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount (in such currency, currencies or currency units in which
such Securities are then specified as payable at Maturity), or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof in an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Maturity of such principal, premium, if
any, or interest and (ii) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article Eleven, which
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<PAGE>
shall be given effect in applying the foregoing. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations of
the United States of America for the payment of which its full faith and
credit is pledged or (y) 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, which, in either
case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific payment
of principal of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such depositary 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
depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depositary
receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
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<PAGE>
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
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<PAGE>
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.
--------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1305; provided,
--------
however, that if the Company makes any payment of principal of (and premium, if
- -------
any) or interest on
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<PAGE>
any such Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
UNOVA, INC.
By:____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:____________________________________
Name:
Title:
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<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On ___________, 199_, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------
Notary Public
<PAGE>
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On the _____ day of _________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is _____________ of _______________________________, one of the companies
described in and which executed the foregoing instrument; that it was so affixed
by authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority of the Board of Directors of said
corporation.
----------------------------
Notary Public
<PAGE>
Exhibit 4(i)
================================================================================
UNOVA, INC.
TO
THE BANK OF NEW YORK
as Trustee
__________
INDENTURE
Dated as of ________, 199_
Providing for Issuance of Subordinated
Debt Securities in Series
================================================================================
<PAGE>
UNOVA, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310(a)(1) ...................... 609
(a)(2) ...................... 609
(a)(3) ...................... Not Applicable
(a)(4) ...................... Not Applicable
(b) ...................... 608
610
(S) 311(a) ...................... 613
(b) ...................... 613
(S) 312(a) ...................... 701
702(a)
(b) ...................... 702(b)
(c) ...................... 702(c)
(S) 313(a) ...................... 703(a)
(b) ...................... 703(a)
(c) ...................... 703(a)
(d) ...................... 703(b)
(S) 314(a) ...................... 704
(a)(4) ...................... 101
1004
(b) ...................... Not Applicable
(c)(1) ...................... 102
(c)(2) ...................... 102
(c)(3) ...................... Not Applicable
(d) ...................... Not Applicable
(e) ...................... 102
(S) 315(a) ...................... 601
(b) ...................... 602
(c) ...................... 601
(d) ...................... 601
(e) ...................... 514
(S) 316(a) ...................... 101
(a)(1)(A)...................... 502
512
(a)(1)(B)...................... 513
(a)(2) ...................... Not Applicable
(b) ...................... 508
(c) ...................... 104(c)
(S) 317(a)(1) ...................... 503
(a)(2) ...................... 504
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
(b) ...................... 1003
(S) 318(a) ...................... 107
</TABLE>
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<S> <C> <C>
Section 101. Definitions................................. 1
Section 102. Compliance Certificates and Opinions........ 10
Section 103. Form of Documents Delivered to Trustee...... 11
Section 104. Acts of Holders; Record Dates............... 12
Section 105. Notices, Etc., to Trustee and Company....... 13
Section 106. Notice to Holders; Waiver................... 13
Section 107. Conflict with Trust Indenture Act........... 14
Section 108. Effect of Headings and Table of Contents.... 14
Section 109. Successors and Assigns...................... 14
Section 110. Separability Clause......................... 15
Section 111. Benefits of Indenture....................... 15
Section 112. Governing Law............................... 15
Section 113. Legal Holidays.............................. 15
<CAPTION>
ARTICLE TWO
Security Forms
<S> <C> <C>
Section 201. Forms Generally............................. 16
Section 202. Form of Face of Security.................... 16
Section 203. Form of Reverse of Security................. 19
Section 204. Additional Provisions Required in Book-Entry
Security.................................... 25
Section 205. Form of Trustee's Certificate of
Authentication.............................. 26
<CAPTION>
ARTICLE THREE
The Securities
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series........ 26
Section 302. Denominations............................... 29
Section 303. Execution, Authentication, Delivery and
Dating...................................... 30
Section 304. Temporary Securities........................ 32
Section 305. Registration, Registration of Transfer and
Exchange.................................... 33
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................. 35
Section 307. Payment of Interest; Interest Rights
Preserved................................... 36
Section 308. Persons Deemed Owners....................... 38
</TABLE>
i
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<TABLE>
<S> <C> <C>
Section 309. Cancellation................................ 38
Section 310. Computation of Interest..................... 39
Section 311. CUSIP Numbers............................... 39
<CAPTION>
ARTICLE FOUR
Satisfaction and Discharge
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture..... 40
Section 402. Application of Trust Money.................. 41
<CAPTION>
ARTICLE FIVE
Remedies
<S> <C> <C>
Section 501. Events of Default........................... 41
Section 502. Acceleration of Maturity; Rescission and
Annulment................................... 44
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................... 45
Section 504. Trustee May File Proofs of Claim............ 46
Section 505. Trustee May Enforce Claims Without Possession
of Securities............................... 47
Section 506. Application of Money Collected.............. 47
Section 507. Limitation on Suits......................... 47
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest............. 48
Section 510. Rights and Remedies Cumulative.............. 49
Section 511. Delay or Omission Not Waiver................ 49
Section 512. Control by Holders.......................... 49
Section 513. Waiver of Past Defaults..................... 50
Section 514. Undertaking for Costs....................... 50
Section 515. Waiver of Usury, Stay or Extension Laws..... 51
<CAPTION>
ARTICLE SIX
The Trustee
<S> <C> <C>
Section 601. Certain Duties and Responsibilities......... 51
Section 602. Notice of Defaults.......................... 51
Section 603. Certain Rights of Trustee................... 52
Section 604. Not Responsible for Recitals or Issuance of
Securities.................................. 53
Section 605. May Hold Securities......................... 53
Section 606. Money Held in Trust......................... 54
Section 607. Compensation and Reimbursement.............. 54
Section 608. Disqualification; Conflicting Interests..... 55
Section 609. Corporate Trustee Required; Eligibility..... 55
Section 610. Resignation and Removal; Appointment of
Successor................................... 56
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 611. Acceptance of Appointment by Successor...... 58
Section 612. Merger, Conversion, Consolidation or
Succession to Business...................... 59
Section 613. Preferential Collection of Claims Against
Company..................................... 60
Section 614. Appointment of Authenticating Agent......... 60
<CAPTION>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<S> <C> <C>
Section 701. Company to Furnish Trustee Names and
Addresses of Holders........................ 62
Section 702. Preservation of Information; Communications
to Holders.................................. 63
Section 703. Reports by Trustee.......................... 63
Section 704. Reports by Company.......................... 63
<CAPTION>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on
Certain Terms............................... 64
Section 802. Successor Substituted....................... 65
Section 803. Officers' Certificate and Opinion of
Counsel..................................... 65
<CAPTION>
ARTICLE NINE
Supplemental Indentures
<S> <C> <C>
Section 901. Supplemental Indentures Without Consent of
Holders..................................... 65
Section 902. Supplemental Indentures with Consent of
Holders..................................... 67
Section 903. Execution of Supplemental Indentures........ 68
Section 904. Effect of Supplemental Indentures........... 69
Section 905. Conformity with Trust Indenture Act......... 69
Section 906. Reference in Securities to Supplemental
Indentures.................................. 69
<CAPTION>
ARTICLE TEN
Covenants
<S> <C> <C>
Section 1001. Payment of Principal, Premium and
Interest.................................... 69
Section 1002. Maintenance of Office or Agency............. 69
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
Section 1003. Money for Securities Payments to Be Held in
Trust....................................... 70
Section 1004. Statement by Officers as to Default......... 72
Section 1005. Existence................................... 72
Section 1006. Maintenance of Properties................... 72
Section 1007. Payment of Taxes and Other Claims........... 73
Section 1008. Waiver of Certain Covenants................. 73
Section 1009. Calculation of Original Issue Discount...... 73
<CAPTION>
ARTICLE ELEVEN
Redemption of Securities
<S> <C> <C>
Section 1101. Applicability of Article.................... 74
Section 1102. Election to Redeem: Notice to Trustee....... 74
Section 1103. Selection by Trustee of Securities to Be
Redeemed.................................... 74
Section 1104. Notice of Redemption........................ 75
Section 1105. Deposit of Redemption Price................. 76
Section 1106. Securities Payable on Redemption Date....... 76
Section 1107. Securities Redeemed in Part................. 77
<CAPTION>
ARTICLE TWELVE
Sinking Funds
<S> <C> <C>
Section 1201. Applicability of Article.................... 77
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.................................. 78
Section 1203. Redemption of Securities for Sinking
Fund........................................ 78
<CAPTION>
ARTICLE THIRTEEN
Subordination of Securities
<S> <C> <C>
Section 1301. Securities Subordinate to Senior Debt....... 79
Section 1302. Payment Over of Proceeds Upon Dissolution,
Etc......................................... 79
Section 1303. No Payment When Senior Debt in Default...... 80
Section 1304. Payment Permitted If No Default............. 81
Section 1305. Subrogation to Rights of Holders of Senior
Debt........................................ 82
Section 1306. Provisions Solely to Define Relative
Rights...................................... 82
Section 1307. Trustee to Effectuate Subordination......... 83
Section 1308. No Waiver of Subordination Provisions....... 83
Section 1309. Notice to Trustee........................... 84
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
Section 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent........................... 85
Section 1311. Trustee Not Fiduciary for Holders of Senior
Debt........................................ 85
Section 1312. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights...... 85
Section 1313. Article Applicable to Paying Agents......... 85
Section 1314. Defeasance of this Article Thirteen......... 86
<CAPTION>
ARTICLE FOURTEEN
Conversion of Securities
<S> <C> <C>
Section 1401. Applicability of Article.................... 86
Section 1402. Conversion Privilege and Conversion
Price....................................... 86
Section 1403. Exercise of Conversion Privilege............ 87
Section 1404. Fractions of Shares......................... 88
Section 1405. Adjustment of Conversion Price.............. 88
Section 1406. Notice of Adjustments of Conversion
Price....................................... 94
Section 1407. Notice of Certain Corporate Action.......... 94
Section 1408. Company to Reserve Common Stock............. 95
Section 1409. Taxes on Conversions........................ 95
Section 1410. Covenant as to Common Stock................. 96
Section 1411. Cancellation of Converted Securities........ 96
Section 1412. Provisions in Case of Consolidation,
Merger or Sale of Assets.................... 96
<CAPTION>
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
<S> <C> <C>
Section 1501. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.... 97
Section 1502. Defeasance and Discharge.................... 98
Section 1503. Covenant Defeasance......................... 99
Section 1504. Conditions to Defeasance or Covenant
Defeasance.................................. 99
Section 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.................... 102
Section 1506. Reinstatement............................... 103
</TABLE>
- ---------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
v
<PAGE>
INDENTURE, dated as of _________ __, 199_, between UNOVA, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 360 North Crescent
Drive, Beverly Hills, California, and The Bank of New York, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors
-2-
<PAGE>
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 1411, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company at
the date of this instrument or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
-3-
<PAGE>
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be administered, which at the date hereof is 101 Barclay Street,
Floor 21 West, New York, New York 10286.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Agreement" means the Credit Agreement, dated as of September
24, 1997, among the Company, the banks listed therein and Morgan Guaranty Trust
Company of New York, as Agent, as it may be amended, modified, supplemented,
replaced, renewed, extended or restated from time to time.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Expiration Time" has the meaning specified in Section 1405.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto
-4-
<PAGE>
entered into pursuant to the applicable provisions hereof, including, for all
purposes of this instrument, and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the forms and terms of particular series of
Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
-5-
<PAGE>
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to Section
1104 of this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections 1502 and
1503, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Fifteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section
-6-
<PAGE>
301 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
-7-
<PAGE>
"Purchased Shares" has the meaning specified in Section 1405.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Payment" has the meaning specified in Section 1302.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means, without duplication, the principal, premium (if
any) and unpaid interest on all present and future (i) indebtedness of the
Company for borrowed money, (ii) obligations of the Company evidenced by bonds,
debentures, notes or similar instruments, (iii) indebtedness incurred, assumed
or guaranteed by the Company in connection with the acquisition by it or a
Subsidiary of any business, properties or assets (except purchase-money
indebtedness classified as accounts payable under generally accepted accounting
principles), (iv) obligations of the Company as lessee under leases required to
be capitalized on the balance sheet of the lessee under generally accepted
accounting principles, (v) reimbursement obligations of the Company in respect
of letters of credit relating to
-8-
<PAGE>
indebtedness or other obligations of the Company that qualify as indebtedness or
obligations of the kind referred to in clauses (i) through (iv) above, and (vi)
obligations of the Company under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (v) above,
in each case unless in the instrument creating or evidencing the indebtedness or
obligation or pursuant to which the same is outstanding it is provided that such
indebtedness or obligation is not superior in right of payment to Senior Debt
Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"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" 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 the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"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.
-9-
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
1504.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
-10-
<PAGE>
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or
-11-
<PAGE>
instruments are delivered to a Responsible Officer of the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
-12-
<PAGE>
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to a Responsible Officer of the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such
-13-
<PAGE>
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of a Responsible
Officer of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the
-14-
<PAGE>
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and
-15-
<PAGE>
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code and the
------------------------------------------- --------------------
regulations thereunder.]
- ------------------------
UNOVA, INC.
............................................
No. ..... $. . . . . . .
CUSIP No.______________
UNOVA, Inc., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
................................., or registered assigns, the principal sum of
........................... Dollars on ........................... [if the
------
Security is to bear interest prior to Maturity, insert --, and to pay interest
- ------------------------------------------------------
thereon from ........... or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on ............. and
............ in each year, commencing ........., at the rate of .......... % per
annum, until the principal hereof is paid or made available for payment [if
--
applicable, insert -- and (to the extent that the payment of such interest shall
- ------------------
be legally enforceable) at the rate of .... % per annum on any overdue principal
and premium and on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
.......... or ........ (whether or not a Business Day), as the case may be, next
preceding such
-16-
<PAGE>
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
------------------------------------------------ ----------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ......% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
---------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in ............., in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
----------------------
provided, however, that at the option of the Company payment of interest may be
- -------- -------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire
instructions.]
-17-
<PAGE>
[If the Security is payable in a foreign currency, insert -- the
------------------------------------------------- ------
appropriate provision.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UNOVA, INC.
By.......................
Title:
Attest:
...........................
Title:
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Debt and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $..........].
[If applicable, insert -- The Securities of this series are subject to
----------------------
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
---
applicable, insert --
- ------------------
-18-
<PAGE>
(1) on ........... in any year commencing with the year...... and ending with
the year .......... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after .......... 19..], as a whole or in part, at the election of the
Company, [at Redemption Prices determined as follows:] [at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before ................, _%, and if redeemed] during the 12-
month period beginning ........ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ..........% of the principal
amount,] together in the case of any such redemption [if applicable, insert --
----------------------
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates or Special Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject
---------------------
to redemption upon not less than 30 nor more than 60 days' notice by mail, (1)
on .......... in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ........], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set
-19-
<PAGE>
forth in the table below: If redeemed during the 12-month period beginning
.......... of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ........% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
Notwithstanding the foregoing, the Company may not, prior to
.........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .......% per annum.]
[The sinking fund for this series provides for the redemption on
........ in each year beginning with the year ......... and ending with the year
of .......... [not less than $............ ("mandatory sinking fund") and not
more than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
-20-
<PAGE>
[If the Securities do not have a sinking fund, then insert -- the
----------------------------------------------------------
Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
[If the Security is subject to redemption, insert -- In the event of
------------------------------------------------
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
-------------------------------------------------- ----------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
---------------------------------------------- ----------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the
-21-
<PAGE>
principal of and interest, if any, on the Securities of this series shall
terminate.]
[If the Security is an Indexed Security, insert -- the appropriate
-----------------------------------------------
provision.]
[If the Security is convertible, insert -- Subject to and upon
--------------------------------------
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at his option, at any time on or after the opening of business on
__________, 19__ and on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the Redemption Date, to convert this Security (or any portion of
the principal amount hereof which is $ __________or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of Common Stock of the Company at a conversion price equal to
$_________ aggregate principal amount of Securities for each share of Common
Stock (or at the current adjusted conversion price if an adjustment has been
made as provided in the Indenture) by surrender of this Security, duly endorsed
or assigned to the Company or in blank, to the Company at its office or agency
in ______________________, accompanied by written notice to the Company that the
Holder hereof elects to convert this Security, of if less than the entire
principal amount hereof is to be converted, the portion hereof to be converted,
and, in case such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (unless this Security of
the portion hereof being converted has been called for redemption on a
Redemption Date within such period), also accompanied by payment in immediately
available funds or other funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
this Security then being converted. Subject to the aforesaid requirement for
payment and, in the case of a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before such Interest Payment Date,
to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with
certain exceptions provided in the Indenture), no payment or adjustment is to be
made on conversion for interest accrued hereon or for dividends on the Common
Stock
-22-
<PAGE>
issued on conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture. The conversion
price is subject to adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Company is a party or the transfer of substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger or transfer by a holder of the number
of shares of Common Stock into which this Security might have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of Common Stock failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing
shares), assuming, if such consolidation, merger or transfer is prior to [insert
date upon which the Securities first become convertible], that this Security was
convertible at the time of such consolidation, merger or transfer at the initial
conversion price specified above as adjusted from _________________, to such
time pursuant to the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
-23-
<PAGE>
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-24-
<PAGE>
The indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles thereof.
Section 204. Additional Provisions Required in
Book-Entry Security.
---------------------------------
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 205. Form of Trustee's Certificate of
Authentication.
---------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ______________
THE BANK OF NEW YORK
--------------------
As Trustee
----------
By...........................
Authorized Signatory
--------------------
-25-
<PAGE>
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest
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shall be payable and the Regular Record Date for any interest payable on
any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
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 other terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, formula or other method, the index, formula or other method by
which such amounts shall be determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series
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as to which such election is made shall be payable, and the periods within
which and the other terms and conditions upon which such election is to be
made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(14) the application, if any, of Section 1502 or 1503 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
(16) any additional, modified or different covenants applicable to one
or more particular series of Securities;
(17) the application, if any, of Article Fourteen to the Securities of
any Series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the
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Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth, or
providing the manner for determining, the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
---------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that, in the case of Securities of
-------- -------
a series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant
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to a Company Order delivered to a Responsible Officer of the Trustee prior to
the time of the first authentication of Securities of such series. If the form
or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
conclusively relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances,
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are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, (ii)
shall be registered in the name of the Depositary for such Book-Entry Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation. The Trustee shall have no responsibility to
determine if the Depositary is so registered. Each Depositary shall enter into
an agreement with the Trustee governing the respective duties and rights of such
Depositary and the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed
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never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
Section 305. Registration, Registration of
Transfer and Exchange.
-----------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver or make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole
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or in part, except the unredeemed portion of any Security being redeemed in
part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
Section 306. 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 or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like
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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 307. Payment of Interest; Interest Rights
Preserved.
------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 1002; provided, however, that at the option of the Company, interest
-------- -------
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for,
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on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other
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lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
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delivered to the Trustee. All Securities so delivered and any Securities
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee and such cancellation shall be noted conspicuously on
each such Security. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authen ticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Unless the Company directs otherwise by a
Company Order, all cancelled Securities held by the Trustee may be destroyed,
but the Trustee shall not be obligated to so destroy such Securities, and, if
any such cancelled Security is destroyed, the Trustee shall furnish to the
Company a certificate with respect to such destruction.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
--------
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.
-----------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, including, but not limited to,
Article Thirteen hereof, when
(1) either
(A) all such Securities theretofore authenticated and delivered
(other than (i) such Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and (ii)
such Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore
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delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment,
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decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days
after 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 at least
25% 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
[(5) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness for money borrowed of the Company or
any Subsidiary, whether such indebtedness now exists or shall hereafter be
created, if (A) such default either (1) results from the failure to pay the
principal of any such indebtedness at its stated maturity or (2) relates to
an obligation other than the obligation to pay the principal of such
indebtedness at its stated maturity and results in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, (B) the principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at stated maturity or
the maturity of which has been so accelerated, aggregates [$25,000,000] or
more at any one time outstanding and (C) such indebtedness is not
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discharged, or such acceleration is not rescinded or annulled within a
period of 10 Business 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 at least 25% in principal amount of Outstanding
Securities a written notice specifying such event of default and requiring
the Company to cause such acceleration to be rescinded or annulled or to
cause such indebtedness to be discharged and stating that such notice is a
"Notice of Default" hereunder; or]
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its
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inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
------------------------------------
If an Event of Default (other than an Event of Default described in
clause 6 or 7 of Section 501) with respect to 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 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of 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, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
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(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 6 or 7 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due and
payable without need of any declaration or other act on the part of the Trustee
or any Holder.
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as
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shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any 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 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
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Section 505. 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 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
Section 507. 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
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee before or 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 Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 509. 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 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 and as otherwise provided in Section 507, 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 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. 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
--------
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including counsel fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
--------
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, the Trustee or the Holders of 10% aggregate
principal amount of the Outstanding Securities of any series.
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<PAGE>
Section 515. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
- -------- -------
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would
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become, an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document (whether in its original or fascimile form) believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
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order, bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(i) 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 604. Not Responsible for Recitals or
Issuance of Securities.
-------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
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608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed between the Company and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of
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its powers or duties hereunder and the costs and expenses of enforcing this
right of indemnification.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting
Interests.
-----------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required;
Eligibility.
---------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and an office in the
Borough of Manhattan, The City of New York at which at any particular time the
Trustee's corporate trust business may be administered. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any Federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall
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resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal;
Appointment of Successor.
------------------------
(a) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its
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property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the
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Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of such
series in the manner provided in Section 106. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by
Successor.
----------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such
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supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates;
provided, however, that to the extent that such property and money is not held
by the Trustee in trust for the benefit of the Holders of particular Securities,
such retiring Trustee shall transfer and deliver to such successor Trustee such
property and money upon payment of its charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
---------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but
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not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company.
-----------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such
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Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _______________
THE BANK OF NEW YORK,
--------------------
As Trustee
----------
By........................
As Authenticating Agent
-----------------------
By........................
Authorized Signatory
--------------------
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding January 1 or July 1, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 702. Preservation of Information;
Communications to Holders.
-------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
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addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 1 following the date of the first issuance
deliver to Holders a brief report, dated as of such May 1, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms.
-----------------------------------
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or the
successor Person or purchaser shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) if a supplemental indenture is to be executed in connection with
such consolidation, merger, transfer or lease, the Company shall have
delivered to the Trustee (A) an Officers' Certificate and (B) an Opinion of
Counsel attesting to compliance with these provisions.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
with or into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with
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the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
Section 803. Officers' Certificate and
Opinion of Counsel.
-------------------------
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.
-------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
--------
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which is mistaken or may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this
--------
clause (10), other than with respect to a mistaken provision, shall not
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adversely affect the interests of the Holders of Securities of any series
in any material respect.
Section 902. Supplemental Indentures with Consent
of Holders.
------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
--------
however, that no such supplemental indenture shall, without the consent of the
- -------
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or adversely affect any right of the Holder
of any Security to require the Company to repurchase such Security, or
adversely affect the right to convert any Security as contemplated by
Article Fourteen or modify the provisions of Article Thirteen or the
definition of "Senior Debt" in a manner adverse to the Holder of any
Security in any material respect, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any percentage set forth in such Sections
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to
Supplemental Indentures.
--------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and
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the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to
Be Held in Trust.
--------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to
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the Trustee all sums held in trust by such Paying Agent for payment in respect
of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default,
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specifying all such defaults and the nature and status thereof of which they may
have knowledge.
Section 1005. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the presentation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary or appropriate in connection with its business;
provided, however, that nothing in this Section shall prevent the Company from
- -------- -------
discontinuing the operation or maintenance of, or selling, abandoning or
otherwise disposing of, any of such properties if such discontinuance or
disposal is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1008. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1007, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1009. Calculation of Original Issue Discount.
--------------------------------------
If the Trustee is requested or required to send Form 1099 (or any
successor form) to Holders of Original Issue Discount Securities, 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.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of the Securities of any series, the Company
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shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
----------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) that there exists a conversion privilege.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
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Section 1105. Deposit of Redemption Price.
---------------------------
Prior to 12:00 noon New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
-------- -------
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Company's obligation to pay interest on
the principal and any premium shall, until paid, accrue from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate
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and deliver or make available for delivery to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
-------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such
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Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 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 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to Senior Debt.
-------------------------------------
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to the provisions
of Article Four and Article Fifteen), the payment of the principal of (and
premium, if any) and interest on each and all of the Securities (including any
amounts payable upon a purchase of the Securities) are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.
Section 1302. Payment Over of Proceeds Upon Dissolution,
------------------------------------------
Etc.
----
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as
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such, or to its assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Securities or on account of any purchase or
other acquisition of Securities by the Company or any Subsidiary of the Company
(all such payments, distributions, purchases and acquisitions herein referred
to, individually and collectively, as a "Securities Payment"), and to that end
the holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or deliverable in
respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or read-
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<PAGE>
justment authorized by an order or decree of a court of competent jurisdiction
in a reorganization proceeding under any applicable bankruptcy law or of any
other corporation provided for by such plan of reorganization or readjustment
which stock or securities are subordinated in right of payment to all then
outstanding Senior Debt to substantially the same extent as the Securities are
so subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
Section 1303. No Payment When Senior Debt in
------------------------------
Default.
-------
In the event that any Securities are declared due and payable before
their Stated Maturity, then in such event the holders of the Senior Debt
outstanding at the time of such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt, before the Holders of the Securities are entitled to receive any
Securities Payment.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or in the event any
judicial proceeding shall be pending with respect to any such default in payment
or event of default, then no Securities Payment shall be made; provided,
--------
however,
- -------
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<PAGE>
that nothing in this paragraph shall prevent the satisfaction of any sinking
fund payment in accordance with Article Twelve by delivering and crediting
pursuant to Section 1202 Securities which have been acquired (upon redemption or
otherwise).
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such Securities Payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 would be applicable.
Section 1304. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such Securities Payment would have been prohibited by the provisions of
this Article.
Section 1305. Subrogation to Rights of Holders of Senior
------------------------------------------
Debt.
----
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to
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the provisions of this Article to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior Debt.
Section 1306. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1307. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1308. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such
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<PAGE>
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1309. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
-------- -------
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and
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shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1310. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1311. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Debt.
----
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mis-
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takenly pay over or distribute to Holders of Securities or to the Company or to
any other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.
Section 1312. Rights of Trustee as Holder of Senior
-------------------------------------
Debt; Preservation of Trustee's Rights.
--------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1313. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 1312 shall not apply to the Company or any Affiliate of
- -------
the Company if it or such Affiliate acts as Paying Agent.
Section 1314. Defeasance of this Article Thirteen.
-----------------------------------
The subordination of the Securities provided by this Article Thirteen
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Fifteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Thirteen.
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ARTICLE FOURTEEN
Conversion of Securities
Section 1401. Applicability of Article.
------------------------
If pursuant to Section 301 provision is made for the conversion of
Securities pursuant to this Article Fourteen, then the provisions of this
Article Fourteen, with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities, shall be applicable to the
Securities of such series.
Section 1402. Conversion Privilege and Conversion Price.
-----------------------------------------
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company, at the conversion
price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall commence at the opening of business on the date
provided for with respect to such Securities and expire at the close of business
on the date provided for with respect to such Securities. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be delivered upon
conversion is herein referred to as the "conversion price". The conversion
price shall be adjusted in certain instances as provided in Section 1405.
Section 1403. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 1002, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
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conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in immediately available funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered
for conversion. Except as provided in the preceding sentence and subject to the
third paragraph of Section 307, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1404.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Section 1404. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities
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(or specified portions thereof), the Company shall pay a cash adjustment in
respect of such fraction in an amount equal to the same fraction of the market
price per share of Common Stock (as determined by the Board of Directors or in
any manner prescribed by the Board of Directors) at the close of business on the
day of conversion.
Section 1405. Adjustment of Conversion Price.
------------------------------
(1) In case at any time after the date of the issuance of the
applicable Securities, the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common Stock, the
conversion price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the
applicable Securities, the Company shall issue rights or warrants to all holders
of its Common Stock (not being available on an equivalent basis to Holders of
the Securities upon conversion) entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for the determination of stockholders entitled
to receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the conversion price in effect at the opening of business on
the day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares
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of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights or warrants in respect of shares of Common Stock held
in the treasury of the Company.
(3) In case at any time after the date of the issuance of the
applicable Securities, outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid in cash out of
the retained earnings of the Company and any dividend or distribution referred
to in paragraph (1) of this Section), the conversion price shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as
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provided in paragraph (8) of this Section) of the Common Stock on the date fixed
for such determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such current market price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(5) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash that is distributed
upon a merger or consolidation to which Section 1411 applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (5) has been made and (II) the
aggregate of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) of consideration payable in respect of any tender offer by the
Company or any of its subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to paragraph (6) of
this Section has been made, exceeds 15% of the product of the current market
price per share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
conversion price shall be decreased so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the excess of such
combined amount over such 15% and (y) the number of shares
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of Common Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Stock on
such date for determination.
(6) In case at any time after the date of the issuance of the
applicable Securities, a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall require the payment to stockholders
(based on the acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares (as defined below)) of an aggregate consideration
having a fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) that
combined together with (I) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of such
tender offer, of consideration payable in respect of any other tender offer, by
the Company or any Subsidiary for all or any portion of the Common Stock
expiring within the 12 months preceding the expiration of such tender offer and
in respect of which no adjustment pursuant to this paragraph (6) has been made
and (II) the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to paragraph (5) of this Section has been made, exceeds 15% of the product of
the current market price per share of the Common Stock (determined as provided
in paragraph (8) of this Section) as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it may be
amended) times the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date of the
Expiration Time, the conversion price shall be adjusted so that the same shall
equal the price determined by multiplying the conversion price immediately prior
to close of business on the date of the Expiration Time by a fraction (i) the
numerator of which shall be equal to (A) the product of (I) the current market
price per share of the Common Stock (determined as provided in paragraph (8) of
this Section) on the date of the Expiration Time and (II) the number of shares
of Common Stock outstanding (including any tendered shares) on the Expiration
Time less (B) the amount of cash plus the fair market value
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(determined as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares, and (ii) the denominator of which shall be equal to
the product of (A) the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this Section) as of the Expiration
Time and (B) the number of shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the number of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1412 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2), (4), (5)
and (6) of this Section, the current market price per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than the earlier of the day in
question and the day before the "ex" date with request to the issuance or
distribution requiring such computation. The closing price for each day shall
be the last reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such Exchange, on the
principal national
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securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the National Association of Securities Dealers Automated Quotations National
Market System or, if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose. For purposes of this paragraph, the term "'ex'
date", when used with respect to any issuance or distribution, means the first
date on which the Common Stock trades regular way on such exchange or in such
market without the right to receive such issuance or distribution.
(9) No adjustment in the conversion price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (9)) would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this paragraph
-------- -------
(9) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (9) shall
be made to the nearest cent.
(10) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this paragraph (10) and
its actions in so doing shall be final and conclusive.
Section 1406. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 1405 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each office or agency
maintained
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for the purpose of conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register.
Section 1407. Notice of Certain Corporate Action.
----------------------------------
In case at any time after the date 20 days prior to the date on which
the Securities first become convertible:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its retained
earnings; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights or warrants are
to be determined, or (y) the date on which
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such reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up. Neither the
failure to give such notice nor any defect therein shall affect the legality or
validity of the proceedings described in clauses (a) through (d) of this Section
1407. If at the time the Trustee shall not be the conversion agent, a copy of
such notice shall also forthwith be filed by the Company with the Trustee.
Section 1408. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
Section 1409. Taxes on Conversions.
--------------------
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
Section 1410. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1409, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
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Section 1411. Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
Section 1412. Provisions in Case of Consolidation,
Merger or Sale of Assets.
------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each Security
then outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1402, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be ("constituent Person"), or an Affiliate of a constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, sale or transfer by other than
a constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares), and assuming, if such
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consolidation, merger, sale or transfer is prior to the date upon which the
Securities first become convertible, that the Securities were convertible at the
time of such consolidation, merger, sale or transfer at the initial conversion
price specified in Section 1402 as adjusted from the date of the issuance of
the applicable Securities to such time pursuant to Section 1405. Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
---------------------------------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Fifteen, with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1502 (if applicable) or Section 1503 (if
applicable) applied to the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article Fifteen.
Section 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to any series of Securities the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series,
and the provisions of Article Thirteen hereof shall cease to be effective, on
and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of
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such series which shall thereafter be deemed to be "Outstanding" only for the
purposes of the Sections of this Indenture referred to in clauses (A) and (B) of
this Section, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1504 as more fully set forth in such Section, payments of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003 and such obligations as shall be
ancillary thereto, (C) the rights, powers, trusts, duties, immunities and other
provisions in respect of the Trustee hereunder and (D) this Article Fifteen.
Subject to compliance with this Article Fifteen, the Company may exercise its
option under this Section 1502 notwithstanding the prior exercise of its option
under Section 1503 with respect to the Securities of such series. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities, the Company shall be released from
its obligations under Section 801 (and any covenant made applicable to such
Securities pursuant to Section 301), the occurrence of an event specified in
Section 501(4) (with respect to Section 801) (and any other Event of Default
applicable to such Securities that are determined pursuant to Section 301 to be
subject to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Securities of such series and the provisions of
Article Thirteen hereof shall cease to be effective on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Section 801 (and any other
covenant made applicable to such Security pursuant to Section 301), but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the
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Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of any reference
in any such Section or such other covenant to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1504. Conditions to Defeasance or Covenant
Defeasance.
------------------------------------
The following shall be the conditions precedent to application of
either Section 1502 or Section 1503 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Fifteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount (in such currency, currencies or currency units in which
such Securities are then specified as payable at Maturity), or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof in an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Maturity of such principal, premium, if
any, or interest and (ii) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in applying the
foregoing. For
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this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) 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, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depositary 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 depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
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(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1502
or the covenant defeasance under Section 1503 (as the case may be) have
been complied with.
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Section 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.
--------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1504 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1505 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1505; provided, however, that
-------- -------
if the Company makes any
-101-
<PAGE>
payment of principal of (and premium, if any) or interest on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
UNOVA, INC.
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK
By:_____________________________________
Name:
Title:
-102-
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On ____________, 199_, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of ___________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she is _____________ of _______________________________, one of the companies
described in and which executed the foregoing instrument; that it was so affixed
by authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority of the Board of Directors of said
corporation.
----------------------------
Notary Public
<PAGE>
Exhibit 4(j)
- --------------------------------------------------------------------------------
[DEBT SECURITIES] [[SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
dated as of ________ __, ____
between
UNOVA, INC.
and
[NAME OF WARRANT AGENT], as Warrant Agent
--------------------------
[Debt Securities] [[Series __ Preferred Stock] [Common Stock] [Depositary Share]
Warrants
Expiring ________ __, ____
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES........................................................................................... 1
RECITALS.......................................................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants............................................................... 2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates............................... 3
SECTION 1.03. Transfer of Warrants............................................................... 4
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.......................... 6
SECTION 1.05. Cancellation of Warrant Certificates............................................... 6
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in Book-Entry form:
and Beneficial Owners] of Warrant Certificates.................................... 6
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price..................................................................... 7
SECTION 2.02. Duration of Warrants............................................................... 7
SECTION 2.03. Exercise of Warrants............................................................... 8
SECTION 2.04. Adjustment Under Certain Circumstances............................................. 10
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS [IF WARRANTS ARE TO
BE ISSUED IN BOOK-ENTRY FORM: AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by Warrants or
Warrant Certificates.............................................................. 11
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form: and Beneficial
Owner] of Warrant May Enforce Rights.............................................. 11
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE IV
CONCERNING THE WARRANT AGENT
<S> <C>
SECTION 4.01. Warrant Agent...................................................................... 11
SECTION 4.02. Limitations on Warrant Agent's Obligations......................................... 11
SECTION 4.03. Compliance With Applicable Laws.................................................... 13
SECTION 4.04. Resignation and Appointment of Successor........................................... 13
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments......................................................................... 15
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance................................ 16
SECTION 5.03. Notices and Demands to the Company and Warrant Agent............................... 17
SECTION 5.04. Addresses.......................................................................... 17
SECTION 5.05. GOVERNING LAW...................................................................... 17
SECTION 5.06. Delivery of Prospectus............................................................. 17
SECTION 5.07. Obtaining of Governmental Approvals................................................ 17
SECTION 5.08. Payment of Taxes................................................................... 18
SECTION 5.09. Benefits of Warrant Agreement...................................................... 18
SECTION 5.10. Headings........................................................................... 18
SECTION 5.11. Severability....................................................................... 18
SECTION 5.12. Counterparts....................................................................... 18
SECTION 5.13. Inspection of Agreement............................................................ 18
</TABLE>
EXHIBITS
--------
EXHIBIT A. Form of Warrant Certificate
-ii-
<PAGE>
[DEBT SECURITIES] [[SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
[DEBT SECURITIES] [[SERIES __ PREFERRED STOCK] [COMMON STOCK] [DEPOSITARY
SHARES] WARRANT AGREEMENT, dated as of ________ __, ____ (as modified, amended
or supplemented, this "Agreement"), between UNOVA, Inc., a Delaware corporation
(the "Company") and [NAME OF WARRANT AGENT], a _________________, as Warrant
Agent (the "Warrant Agent").
W I T N E S S E T H:
- - - - - - - - - -
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
---------------------------------------------------------------------
Purchase Debt Securities: WHEREAS, the Company has entered into an indenture
- -------------------------
(the "[Senior] [Subordinated] Indenture") dated as of ______________ between the
Company and [Name of trustee], as trustee (the "[Senior] [Subordinated]
Trustee"), providing for the issuance from time to time of its unsecured
[senior] [subordinated] debentures, notes or other evidences of indebtedness
(the "[Senior] [Subordinated] Debt Securities"), to be issued in one or more
series as provided in the [Senior] [Subordinated] Indenture; [if Warrant
----------
Securities are not under same Indenture as Debt Securities to which they are
- ----------------------------------------------------------------------------
attached: and an Indenture (the "[Senior] [Subordinated] Indenture," the Senior
- ---------
and Subordinated Indentures being referred to collectively as the "Indentures")
dated as of _________________ between the Company and _______________, as
trustee (the "[Senior] [Subordinated] Trustee," (the Senior and Subordinated
Trustees being referred to collectively, as the "Trustees"), providing for the
issuance from time to time of its [senior] [subordinated] debentures, notes or
other evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities,"
the Senior and Subordinated Debt Securities being referred to collectively as
the "Debt Securities"), to be issued in one or more series as provided in the
[Senior] [Subordinated] Indenture]; and
[If Securities and Warrants are to be offered together: WHEREAS, the
------------------------------------------------------
Company proposes to sell [title of Securities being offered] (the "Securities")
together with warrants (each, a "Warrant") representing the right to purchase
[title of Securities purchasable upon exercise of Warrants] [If Warrants for
---------------
Depositary Shares are to be offered: , each representing a 1/__th interest in a
- ------------------------------------
share of [title of securities represented by Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
----------------------------------------------------
shall also refer, as appropriate, to such [title of securities represented by
Depositary Shares]), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and]
[If Warrants are to be offered separately: WHEREAS, the Company proposes to
-----------------------------------------
sell warrants (each, a "Warrant") representing the right to purchase [title of
Securities
-1-
<PAGE>
purchasable upon exercise of Warrants] [If Warrants for Depositary Shares are to
----------------------------------------
be offered: , each representing a 1/__th interest in a share of [title of
- -----------
securities represented by the Depositary Shares]] (the "Warrant Securities" [If
--
Warrants for Depositary Shares are to be offered: , which term shall also refer,
- -------------------------------------------------
as appropriate, to such [title of securities represented by the Depositary
Shares]), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the
--------------------
right, subject to the provisions contained herein and therein, to purchase
[________] Warrant Securities [in the aggregate principal amount of $_____] at
the Exercise Price set forth in Section 2.01. [If Securities and Warrants are
------------------------------
to be offered together: Warrants shall be issued in units with the Securities
- -----------------------
[If Warrants are not immediately detachable: and shall not be separately
- --------------------------------------------
transferable [Unless Warrants are not detachable: before ________ __, ____ (the
-----------------------------------
"Detachment Date")]].] [If Warrants are to be offered separately: Warrants
-----------------------------------------
shall be issued as a separate security and shall be transferable from and after
the date of issuance.] [If Warrants are to be offered in Book-Entry form:
-------------------------------------------------
[All] [A portion] of the Warrants shall initially be represented by one or more
Book-Entry certificates (each, a "Book-Entry Warrant Certificate").] [If
--
Securities and Warrants are to be offered together and in definitive form: Each
- --------------------------------------------------------------------------
Warrant Certificate included in such a unit shall evidence [_______] Warrants
for each [$_____ principal amount of] [_______] Securities included in such
unit.] [If Warrants are to be offered separately and in definitive form: Each
----------------------------------------------------------------
Warrant Certificate shall evidence [_______] Warrants.]
-2-
<PAGE>
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
----------------------------------------------------
(a) One or more Warrant Certificates evidencing Warrants to purchase not
more than [____] [$_______ in aggregate principal amount of] Warrant Securities
(except as provided in Sections 1.03, 1.04 and 2.03(e)) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such appropriate
---------
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. [If Warrants are issued in Book-Entry form: Each
------------------------------------------
Book-Entry Warrant Certificate shall bear such legend or legends as may be
required by the Depository in order for it to accept the Warrants for its book-
entry settlement system.] Each Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved or otherwise reproduced in
any other manner as may be approved by the officers executing the same (such
execution to be conclusive evidence of such approval) and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (such execution to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto, or with any regulation of any stock exchange
on which the Warrants [If Securities and Warrants are to be offered together: ,
------------------------------------------------------
the Securities] or the Warrant Securities may be listed, or to conform to usage.
Each Warrant Certificate shall be signed on behalf of the Company by its
Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer or any Vice President. The signature of any such officer on any Warrant
Certificate may be manual or facsimile. Each Warrant Certificate, when so
signed on behalf of the Company, shall be delivered to the Warrant Agent
together with an order for the countersignature and delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate duly
executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
-3-
<PAGE>
(e) If any officer of the Company who has signed any Warrant Certificate
either manually or by facsimile signature shall cease to be such officer before
such Warrant Certificate shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Warrant Certificate had not
ceased to be such officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Warrant Certificate, shall be the proper officers of the
Company as specified in this Section 1.02, regardless of whether at the date of
the execution of this Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry form: ,
------------------------------------------------
except as stated below with respect to Warrants evidenced by a Book-Entry
Warrant Certificate,] be entitled to receive Warrants in physical, certificated
form.
[If Warrants are to be issued in Book-Entry form: (g) A Book-Entry
------------------------------------------------
Warrant Certificate may be exchanged for a new Book-Entry Warrant Certificate,
or one or more new Book-Entry Warrant Certificates may be issued, to reflect the
issuance by the Company of additional Warrants. To effect such an exchange, the
Company shall deliver to the Warrant Agent one or more new Book-Entry Warrant
Certificates duly executed on behalf of the Company as provided in Section 1.02.
The Warrant Agent shall authenticate each new Book-Entry Warrant Certificate as
provided in Section 1.02 and shall deliver each new Book-Entry Warrant
Certificate to the Depository. The Warrant Agent shall cancel each Book-Entry
Warrant Certificate delivered to it by the Depository in exchange therefor, if
any.]
SECTION 1.03. Transfer of Warrants.
--------------------
[If Warrants are to be issued in Book-Entry form: (a) [All] [A portion]
------------------------------------------------
of the Warrants shall initially be represented by one or more Book-Entry Warrant
Certificates deposited with [the Depository Trust Company] (the "Depository")
and registered in the name of [Cede & Co.], a nominee of the Depository. Except
as provided for in Section 1.03(b) hereof, no person acquiring Warrants with
book-entry settlement through the Depository shall receive or be entitled to
receive physical delivery of definitive Warrant Certificates evidencing such
Warrants. Ownership of beneficial interests in the Warrants shall be shown on,
and the transfer of such ownership shall be effected through, records maintained
by (i) the Depository or its nominee for each Book-Entry Warrant Certificate, or
(ii) institutions that have accounts with the Depository (such institution, with
respect to a Warrant in its account, a "Participant").]
[If Warrants are to be issued in Book-Entry form: (b) If the Depository
------------------------------------------------
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the Warrants are not
eligible for, or it is no longer
-4-
<PAGE>
necessary to have the Warrants available in, book-entry form, the Warrant
Agent shall provide written instructions to the Depository to deliver to the
Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the
Company shall instruct the Warrant Agent to deliver to the Depository definitive
Warrant Certificates in physical form evidencing such Warrants. Such definitive
Warrant Certificates shall be in the form annexed hereto as Exhibit A with
appropriate insertions, modifications and omissions, as provided above.]
[If Securities and Warrants are to be offered together: (c) [If Warrants
------------------------------------------------------ -----------
are not immediately detachable: Prior to the Detachment Date,] Warrants may be
- -------------------------------
transferred or exchanged only together with the Security to which such Warrant
is attached, and only for the purpose of effecting, or in conjunction with, a
transfer or exchange of such Security. Furthermore, [If Warrants are not
-------------------
immediately detachable: on or prior to the Detachment Date,] each transfer of a
- -----------------------
Security on the register relating to such Securities shall operate also to
transfer the Warrants to which such Security was initially attached. [If
--
Warrants are not immediately detachable: From and after the Detachment Date, the
- ----------------------------------------
above provisions shall be of no further force and effect.]
(d) A Warrant Certificate may be transferred at the option of the Holder
thereof upon surrender of such Warrant Certificate at the corporate trust office
of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent [If Warrants are to be issued
----------------------------
in Book-Entry form: ; provided, however, that except as otherwise provided
- ------------------- -------- -------
herein or in any Book-Entry Warrant Certificate, each Book-Entry Warrant
Certificate may be transferred only in whole and only to the Depository, to
another nominee of the Depository, to a successor depository, or to a nominee of
a successor depository]. Upon any such registration of transfer, the Company
shall execute, and the Warrant Agent shall countersign and deliver, as provided
in Section 1.02, in the name of the designated transferee a new Warrant
Certificate or Warrant Certificates of any authorized denomination evidencing in
the aggregate a like number of unexercised Warrants.
(e) [If Warrants are not immediately detachable: After the Detachment
-------------------------------------------
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
--------
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange,
the Company shall execute, and the Warrant Agent shall countersign and deliver,
as provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
-5-
<PAGE>
(f) The Warrant Agent shall keep, at its corporate trust office, books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
---------------------------------------------------------
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity satisfactory to them and, in the case of
mutilation, upon surrender of such Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. No service charge shall be
made for any replacement of Warrant Certificates, but the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange.
To the extent permitted under applicable law, the provisions of this Section
1.04 are exclusive with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates and shall preclude any and all other rights or
remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificate surrendered to the Warrant Agent for transfer, exchange or exercise
of the Warrants evidenced thereby shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company. Any Warrant Certificate surrendered to the Company for transfer,
exchange or exercise of the Warrants evidenced thereby shall be promptly
delivered to the Warrant Agent and such transfer, exchange or exercise shall not
be effective until such Warrant Certificate has been received by the Warrant
Agent.
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in Book-
----------------------------------------------------------
Entry form: and Beneficial Owners] of Warrant Certificates. (a) The term
- ----------------------------------------------------------
"Holder", as
-6-
<PAGE>
used herein, shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [If Warrants are not immediately detachable: or, prior to
-------------------------------------------
the Detachment Date, the person in whose name the Security to which such Warrant
Certificate was initially attached is registered upon the register relating to
such Securities. At all times prior to the Detachment Date, the Company will,
or will cause the registrar of the Securities to, make available to the Warrant
Agent such information as to holders of the Securities as may be necessary to
keep the Warrant Agent's records current]. [If Warrants are to be issued in
-------------------------------
Book-Entry form: The Holder of each Book-Entry Warrant Certificate shall
- ----------------
initially be [___________], a nominee of the Depository.]
[If Warrants are to be issued in Book-Entry Form: (b) The term "Beneficial
------------------------------------------------
Owner" as used herein shall mean any person in whose name ownership of
beneficial interests in Warrants evidenced by a Book-Entry Warrant Certificate
is recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Warrants are not immediately detachable: , or, prior to the
-------------------------------------------
Detachment Date, the person in whose name the Security to which such Warrant
Certificate was initially attached is registered upon the register relating to
such Securities].]
( ) Every Holder [If Warrants are to be issued in Book-Entry form: and
------------------------------------------------
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book-Entry
------------------------------------------
form: and Beneficial Owner] that until the Warrant Certificate is transferred on
- -----
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price. The exercise price of each Warrant shall be
--------------
$________ (the "Exercise Price") [modify as appropriate to reflect terms of
offered Warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set forth
--------------------
herein,] Each Warrant may be exercised in whole but not in part [Unless Warrants
---------------
may be exercised on only one date: on any Business Day (as defined below)
- ----------------------------------
occurring during the period (the "Exercise Period") commencing on [its date of
issuance] [_________ __, ____] and ending at 5:00 P.M., New York time,] on
__________ __, ____ (the "Expiration Date"). Each Warrant remaining unexercised
after 5:00 P.M., New York
-7-
<PAGE>
time, on the Expiration Date shall become void, and all rights of the Holder
under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York and California.
SECTION 2.03. Exercise of Warrants.
--------------------
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
--------------------------------------------------
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
---------------
be exercised on only one date: the Expiration Date] to the Warrant Agent at its
- ------------------------------
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form: and, in the
------------------------------------------------
case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the
"Book-Entry Warrants") free on the records of the Depository to an account of
the Warrant Agent at the Depository designated for such purpose in writing by
the Warrant Agent to the Depository from time to time,] (ii) an election to
purchase the Warrant Securities ("Election to Purchase"), [For definitive
--------------
Warrant Certificates: properly completed and executed by the Holder on the
- ---------------------
reverse of the Warrant Certificate] [If Warrants are to be issued in Book-Entry
------------------------------------------
form: or, in the case of a Book-Entry Warrant Certificate, properly executed by
- -----
the Participant and substantially in the form included on the reverse of each
Warrant Certificate,] and (iii) the Exercise Price for each Warrant to be
exercised in lawful money of the United States of America by certified or
official bank check or by bank wire transfer in immediately available funds. If
any of (a) the Warrant Certificate [If Warrants are to be issued in Book-Entry
------------------------------------------
form: or the Book-Entry Warrants,] (b) the Election to Purchase, or (c) the
- -----
Exercise Price therefor, is received by the Warrant Agent after 5:00 P.M., New
York time, on [Unless Warrants may be exercised on only one date: the specified
--------------------------------------------------
Exercise Date, the Warrants will be deemed to be received and exercised on the
Business Day next succeeding the Exercise Date. If the date specified as the
Exercise Date is not a Business Day, the Warrants will be deemed to be received
and exercised on the next succeeding day which is a Business Day. If the
Warrants are received or deemed to be received after] the Expiration Date, the
exercise thereof will be null and void and any funds delivered to the Warrant
Agent will be returned to the Holder [If Warrants are to be issued in Book-Entry
------------------------------------------
form: or Participant, as the case may be,] as soon as practicable. In no event
- -----
will interest accrue on funds deposited with the Warrant Agent in respect of an
exercise or attempted exercise of Warrants. The validity of any exercise of
Warrants will be determined by the Warrant Agent in its sole discretion and such
determination will be final and binding upon the Holder and the Company.
Neither the Company nor the Warrant Agent shall have any obligation to inform a
Holder of the invalidity of any exercise of Warrants. The Warrant Agent shall
deposit all funds received by it in payment of the Exercise Price in the
account of the
-8-
<PAGE>
Company maintained with the Warrant Agent for such purpose and shall advise the
Company by telephone at the end of each day on which funds for the exercise of
the Warrants are received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day following
the [Unless Warrants may be exercised on only one date: Exercise Date of any
--------------------------------------------------
Warrant] [If Warrants may be exercised on only one date: Expiration Date],
----------------------------------------------
advise the Company and the [Trustee under the Indenture applicable to] [the
transfer agent and registrar in respect of] the Warrant Securities issuable upon
such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
--
Warrants are to be issued in Book-Entry form: or Participant, as the case may
- ---------------------------------------------
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
---------------
to be issued in Book-Entry form: or one or more Book-Entry Warrant Certificates,
- --------------------------------
as appropriate,] evidencing the balance, if any, of the Warrants remaining after
such exercise, and such other information as the Company or such [Trustee]
[transfer agent and registrar] shall reasonably require.
(c) The Company shall, by 5:00 P.M., New York time, on the third Business
Day next succeeding the [Unless Warrants may be exercised on only one date:
--------------------------------------------------
Exercise Date of any Warrant] [If Warrants may be exercised on only one date:
----------------------------------------------
Expiration Date], execute, issue and deliver to the Warrant Agent, [pursuant to
the Indenture applicable to the Warrant Securities, the Warrant Securities, duly
authenticated by the Trustee of such Indenture and in authorized denominations]
[the Warrant Securities] to which such Holder is entitled, in fully registered
form, registered in such name or names as may be directed by such Holder [If
--
Warrants are to be issued in Book-Entry form: or the Participant, as the case
- ---------------------------------------------
may be]. Upon receipt of such Warrant Securities, the Warrant Agent shall, by
5:00 P.M., New York time, on the fifth Business Day next succeeding [Unless
------
Warrants may be exercised on only one date: such Exercise Date] [If Warrants may
- ------------------------------------------- ---------------
be exercised on only one date: the Expiration Date], transmit such Warrant
- ------------------------------
Securities, to or upon the order of the Holder [If Warrants are to be issued in
-------------------------------
Book-Entry form: or Participant, as the case may be,] together with, or preceded
- ----------------
by the prospectus referred to in Section 5.06 hereof. The Company agrees that
it will provide such information and documents to the Warrant Agent as may be
necessary for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [certificate of designations] and such
Warrant Securities. From and after the issuance of such Warrant Securities, the
former Holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [certificate of designations] under which such Warrant Securities
are issued and such former Holder's right to receive payments of [principal of
(and premium, if any) and interest, if any, on] [dividends and any other
-9-
<PAGE>
amounts payable in respect of] the Warrant Securities shall be governed
by, and shall be subject to, the terms and provisions of such [Indenture]
[certificate of designations] and the Warrant Securities.
(e) Warrants may be exercised only in whole numbers of Warrants.
[Unless Warrants may be exercised on only one date: If fewer than all of the
- ---------------------------------------------------
Warrants evidenced by a Warrant Certificate are exercised, a new Warrant
Certificate for the number of Warrants remaining unexercised shall be executed
by the Company and countersigned by the Warrant Agent as provided in Section
1.02 hereof, and delivered to the Holder at the address specified on the books
of the Warrant Agent or as otherwise specified by such Holder.]
(f) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered: SECTION 2.04. Adjustment
----------------------------------------- ----------
Under Certain Circumstances. The Exercise Price and the number of Warrant
- ----------------------------
Securities purchasable upon the exercise of each Warrant shall be subject to
adjustment [as shall be determined by the Warrant Agent, which determination
shall be final and binding upon the Holders and the Company.] [as follows:]]
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry Form:
------------------------------------------------
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
-------------------------------------------------------
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
- --------------------------------
thereby shall entitle the Holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry
--------------------------------------------------
form: and Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any
- ---------------------------------------------------------
of the provisions
-10-
<PAGE>
of this Agreement, any Holder [If Warrants are to be issued in Book-Entry form:
-----------------------------------------------
and any Beneficial Owner] of any Warrant, without the consent of the Warrant
- ------------------------
Agent or the Holder of any Warrant, may, on such Holder's [If Warrants are to be
--------------------
issued in Book-Entry form: or Beneficial Owner's] own behalf and for his own
- -------------------------
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect of, such Holder's [If
Warrants are to be issued in Book-Entry form: or Beneficial Owner's] right to
exercise the Warrants evidenced by any Warrant Certificate in the manner
provided in this Agreement and such Warrant Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of
-------------
Warrant Agent] as Warrant Agent of the Company in respect of the Warrants upon
the terms and subject to the conditions herein set forth, and [Name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The
------------------------------------------
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time shall
be subject:
(a) Compensation and Indemnification. The Company agrees to pay the
--------------------------------
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant
---------------------
Agent under this Agreement, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
-------
to it (which may be counsel to the Company), and the advice of such counsel
shall be
-11-
<PAGE>
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
---------
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
--------------------
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants [If Securities and
-----------------
Warrants are to be offered together: , Securities] or Warrant Securities,
------------------------------------
or other securities or obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed
to prevent the Warrant Agent from acting as trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
-------------------------
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not be
---------------------------
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
execution and delivery hereof by the Warrant Agent) or with respect to the
validity or execution of the Warrant Certificates (except its
countersignature thereon).
(h) No Responsibility for Recitals. The recitals contained herein
------------------------------
and in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform such duties as are specifically set forth herein and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its opinion,
assured to it. The Warrant Agent
-12-
<PAGE>
shall not be accountable or under any duty or responsibility for the use by
the Company of any Warrant Certificate authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issue and sale, or
exercise, of the Warrants. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in any Warrant Certificate
or in the case of the receipt of any written demand from a Holder with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate
any proceedings at law or otherwise or, except as provided in Section 5.03
hereof, to make any demand upon the Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent agrees to
-------------------------------
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Agreement and in connection
with the Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the Holders from time to time,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants issued hereunder have been exercised or have expired in accordance with
their terms, which Warrant Agent shall be a bank or trust company organized
under the laws of the United States of America or one of the states thereof,
which is authorized under the laws of the jurisdiction of its organization to
exercise corporate trust powers, has a combined capital and surplus of at least
$50,000,000 and has an office or an agent's office in the United States of
America.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
--------
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent
at any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such
-13-
<PAGE>
appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to be
qualified as set forth in Section 4.04(a), or shall be removed, or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file
a petition seeking relief under any applicable Federal or State bankruptcy or
insolvency law or similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver, conservator or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or to meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of any applicable Federal or State bankruptcy or similar
law, or if any public officer shall have taken charge or control of the Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as set forth
in Section 4.04(a), shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as herein
provided of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be Warrant Agent
under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, in each case provided that it shall be
qualified as set forth in Section 4.04(a), shall be the successor Warrant Agent
under this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties to this Agreement, including, without
limitation, any successor to the Warrant Agent first named above.
-14-
<PAGE>
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.
----------
(a) This Agreement and any Warrant Certificate may be amended by the
parties hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the Holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form: (iv) evidencing and
------------------------------------------------
providing for the acceptance of appointment by a successor Depository with
respect to each Book-Entry Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, (vii) appointing
a successor Warrant Agent, or (viii) amending this Agreement and the Warrants in
any manner that the Company may deem to be necessary or desirable and that will
not adversely affect the interests of the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement and the
Warrants by executing a Supplemental Agreement with the consent of the Holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders under this Agreement; provided, however, that,
-------- -------
without the consent of each Holder of Warrants affected thereby, no such
amendment may be made that (i) changes the Warrants so as to reduce the
[principal amount] [number] of Warrant Securities purchasable upon exercise of
the Warrants or so as to increase the exercise price [If Warrants for Common
----------------------
Stock are offered: (other than as provided by Section 2.03)], (ii) shortens the
- ------------------
period of time during which the Warrants may be exercised, (iii) otherwise
adversely affects the exercise rights of the Holders in any material respect, or
(iv) reduces the number of unexercised Warrants the consent of the Holders of
which is required for amendment of this Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
---------------------------------------------------
Company may consolidate or merge with or into any other corporation or sell,
lease,
-15-
<PAGE>
transfer or convey all or substantially all of its assets to any other
corporation, provided that (i) either (x) the Company is the continuing
--------
corporation or (y) the corporation (if other than the Company) that is formed by
or results from any such consolidation or merger or that receives such assets is
a corporation organized and existing under the laws of the United States of
America or a state thereof and such corporation assumes the obligations of the
Company with respect to the performance and observance of all of the covenants
and conditions of this Agreement to be performed or observed by the Company and
(ii) the Company or such successor corporation, as the case may be, must not
immediately be in default under this Agreement. If at any time there shall be
any consolidation or merger or any sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company, then in
any such event the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In any case of any such merger
or consolidation or sale, lease, transfer, conveyance or other disposition of
all or substantially all of the assets of the Company, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates, as may be appropriate.
SECTION 5.03. Notices and Demands to the Company and Warrant Agent. If
----------------------------------------------------
the Warrant Agent shall receive any notice or demand addressed to the Company by
the Holder [If Warrants are to be issued in Book-Entry form: or a Participant,
------------------------------------------------
as the case may be], the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
____________________, Attention: ________________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to UNOVA, Inc., 360 North Crescent Drive, Beverly
Hills, California 90210, Attention: _____________ (or such other address as
shall be specified in writing by the Warrant Agent or by the Company, as the
case may be). The Company or the Warrant Agent shall give notice to the Holders
of Warrants by mailing written notice by
-16-
<PAGE>
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the books and records of the Warrant Agent [or, prior to the
Detachment Date, on the register of the Securities].
SECTION 5.05. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
shall deliver a Prospectus to the Holder of such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall from
-----------------------------------
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and state
laws, which the Company may deem necessary or appropriate in connection with the
issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and other
----------------
duties, if any, to which, under the laws of the United States of America, this
Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this Agreement or
-----------------------------
any Warrant Certificate expressed or implied and nothing that may be inferred
from any of the provisions hereof or thereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and their respective successors and assigns, [If Warrants are
---------------
to be issued in Book-Entry form: the Beneficial Owners] and the Holders any
- --------------------------------
right, remedy or claim under or by reason of this Agreement or any Warrant
Certificate or of any covenant, condition, stipulation, promise or agreement
hereof or thereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement or any Warrant Certificate shall be for
the sole and exclusive benefit of the Company and the Warrant
-17-
<PAGE>
Agent and their respective successors and assigns and of the [If Warrants are to
------------------
be issued in Book-Entry form: Beneficial Owners and] Holders.
- ----------------------------
SECTION 5.10. Headings. The descriptive headings of the several Articles
--------
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in any
------------
Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
SECTION 5.13. Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent and at the office of the Company at 360 North Crescent Drive,
Beverly Hills, California 90210, for inspection by any Holder. The Warrant
Agent may require any such Holder to submit satisfactory proof of ownership for
inspection by it.
-18-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
UNOVA, INC.
By: _________________________
Authorized Officer
[WARRANT AGENT]
By: _________________________
Authorized Officer
-19-
<PAGE>
EXHIBIT A
---------
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately detachable
- -------------------------------------------------------------------------------
or Warrants that are not immediately exercisable are offered: [PRIOR TO
- -------------------------------------------------------------
_______________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [TITLE OF SECURITY] AND (II)] CANNOT BE EXERCISED
IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
UNOVA, INC.
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _______ __, ___
This certifies that ________________________ or registered assigns is
the registered holder of [insert number initially issued] warrants to purchase
certain securities (the "Warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from UNOVA, Inc., a Delaware corporation (the "Company"),
[$_________ principal amount] [______] of the Company's [title of Securities
purchasable upon exercise of Warrants] [If Warrants for Depositary Shares are to
----------------------------------------
be offered: , each representing a 1/__th interest in a share of [title of
- -----------
securities represented by the Depositary Shares]] (the "Warrant Securities" [If
--
Warrants for Depositary Shares are to be offered: , which term shall also refer,
- -------------------------------------------------
as appropriate, to such [title of securities represented by the Depositary
Shares]), [issued or to be issued under the Indenture (as hereinafter defined)],
at the Exercise Price set forth below. The exercise price of each Warrant (the
"Exercise Price") shall be [modify as appropriate to reflect the terms of the
offered Warrants].
A-1
<PAGE>
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, [Unless Warrants may be exercised on only one date: on any Business Day
--------------------------------------------------
(as defined below) occurring during the period (the "Exercise Period")
commencing on [the date of issuance thereof] [________________ __, ____] and
ending at 5:00 P.M., New York time,] on ____________ __, ____ (the "Expiration
Date"). Each Warrant remaining unexercised after 5:00 P.M., New York time, on
the Expiration Date shall become void, and all rights of the holder of this
Warrant Certificate evidencing such Warrant shall cease.
The holder of the Warrants represented by this Warrant Certificate may
exercise any Warrant evidenced hereby by delivering, not later than 5:00 P.M.,
New York time, on [Unless Warrants may be exercised on only one date: any
--------------------------------------------------
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
---------------
be exercised on only one date: the Expiration Date] to [name of Warrant Agent]
- ------------------------------
(the "Warrant Agent", which term includes any successor warrant agent under the
Warrant Agreement described below) at its corporate trust department at
___________________, (i) this Warrant Certificate [For Book-Entry Warrant
----------------------
Certificate: and the Warrants to be exercised (the "Book-Entry Warrants") free
- ------------
on the records of [The Depository Trust Company] (the "Depository") to an
account of the Warrant Agent at the Depository designated for such purpose in
writing by the Warrant Agent to the Depository], (ii) an election to purchase
("Election to Purchase"), [For definitive Warrant Certificates: properly
------------------------------------
executed by the holder hereof on the reverse of this Warrant Certificate] [For
---
Book-Entry Warrant Certificates: properly executed by the institution in whose
- --------------------------------
account the Warrant is recorded on the records of the Depository (the
"Participant"), and substantially in the form included on the reverse of hereof]
and (iii) the Exercise Price for each Warrant to be exercised in lawful money of
the United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If any of (a) this Warrant Certificate
[For Book-Entry Warrant Certificates: or the Book-Entry Warrants], (b) the
------------------------------------
Election to Purchase, or (c) the Exercise Price therefor, is received by the
Warrant Agent after 5:00 P.M., New York time, on [Unless Warrants may be
----------------------
exercised on only one date: the specified Exercise Date, the Warrants will be
- ---------------------------
deemed to be received and exercised on the Business Day next succeeding the
Exercise Date. If the date specified as the Exercise Date is not a Business
Day, the Warrants will be deemed to be received and exercised on the next
succeeding day which is a Business Day. If the Warrants to be exercised are
received or deemed to be received after] the Expiration Date, the exercise
thereof will be null and void and any funds delivered to the Warrant Agent will
be returned to the holder as soon as practicable. In no event will interest
accrue on funds deposited with the Warrant Agent in respect of an exercise or
attempted exercise of Warrants. The validity of any exercise of Warrants will
be determined by the Warrant Agent in its sole discretion and such determination
will be final and binding upon the holder of the Warrants and the Company.
Neither the Warrant Agent nor the Company shall have any obligation to inform a
holder of Warrants of the invalidity of any exercise of Warrants. As used
herein, the term "Business Day" means any day which is not a Saturday or Sunday
and is not a legal holiday or a day on which banking institutions generally are
authorized or obligated by law or regulation to close in New York or California.
A-2
<PAGE>
Warrants may be exercised only in whole numbers of Warrants. [Unless
------
Warrants may be exercised on only one date: If fewer than all of the Warrants
- -------------------------------------------
evidenced by this Warrant Certificate are exercised, a new Warrant Certificate
for the number of Warrants remaining unexercised shall be executed by the
Company and countersigned by the Warrant Agent as provided in Section 1.02 of
the Warrant Agreement, and delivered to the holder of this Warrant Certificate
at the address specified on the books of the Warrant Agent or as otherwise
specified by such registered holder.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ___________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate [For Book-Entry Warrant
----------------------
Certificate: and the beneficial owners of the Warrants represented by this
- ------------
Warrant Certificate] consent[s] by acceptance hereof. Copies of the Warrant
Agreement are on file and can be inspected at the above-mentioned office of the
Warrant Agent and at the office of the Company at 360 North Crescent Drive,
Beverly Hills, California 90210.
[If the Warrant Securities are Debt Securities: The Warrant Securities
----------------------------------------------
to be issued and delivered upon the exercise of the Warrants evidenced by this
Warrant Certificate will be issued under and in accordance with the Indenture,
dated as of _________ __, ____ (the "Indenture"), between the Company and [name
of trustee], as trustee (together with any successor or successors as such
trustee, the "Trustee"), and will be subject to the terms and provisions
contained in the Warrant Securities and in the Indenture.] The accrual of
[interest] [dividends], if any, on the Warrant Securities issued upon the valid
exercise of any Warrant will be governed by the terms of the applicable
[Indenture] [certificate of designations] and such Warrant Securities. From and
after the issuance of such Warrant Securities, the former holder of the Warrants
exercised will be entitled to the benefits of the [Indenture] [certificate of
designations] under which such Warrant Securities are issued and such former
holder's right to receive payments of [principal of (and premium, if any) and
interest, if any, on] [dividends and any other amounts payable in respect of]
the Warrant Securities shall be governed by, and shall be subject to, the terms
and provisions of such [Indenture] [certificate of designations] and the Warrant
Securities. Copies of the [Indenture, including the form of the Warrant
Securities,] [certificate of designations] are on file at the corporate trust
office of the Trustee.]
[If Warrants for Common Stock are offered: The Exercise Price and the
-----------------------------------------
number of Warrant Securities purchasable upon the exercise of each Warrant shall
be subject to adjustment [as shall be determined by the Warrant Agent, which
determination shall be final and binding upon the holders of the Warrants and
the Company][as provided pursuant to Section 2.04 of the Warrant Agreement].
A-3
<PAGE>
[If Securities and Warrants are to be offered together: [If Warrants
------------------------------------------------------ -----------
are not immediately detachable: Prior to the Detachment Date,] The Warrants
- -------------------------------
represented by this Warrant Certificate may be exchanged or transferred only
together with the [title of Security] (the "Security") to which the Warrants are
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Security. Additionally, [If Warrants are not
-------------------
immediately detachable: on or prior to the Detachment Date,] each transfer of
- -----------------------
such Security on the register of the Securities shall operate also to transfer
the Warrants to which such Securities was initially attached. [If Warrants are
---------------
not immediately detachable: From and after the Detachment Date, the above
- ---------------------------
provisions shall be of no further force and effect.]] Upon due presentment for
registration of transfer or exchange of this Warrant Certificate at the
corporate trust office of the Warrant Agent, the Company shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 of the
Warrant Agreement, in the name of the designated transferee one or more new
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants, subject to the limitations provided in
the Warrant Agreement.
Neither this Warrant Certificate nor the Warrants evidenced hereby
shall entitle the holder hereof or thereof to any of the rights of a holder of
the Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any), and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the applicable Indenture] [the right to receive dividends, if any, or payments
upon the liquidation, dissolution or winding up of the Company or to exercise
voting rights, if any].
The Warrant Agreement and this Warrant Certificate may be amended as
provided in the Warrant Agreement including, under certain circumstances
described therein, without the consent of the holder of this Warrant Certificate
or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE
WARRANT AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated as of ________ __, ____
UNOVA, INC.
By: ________________________
Authorized Officer
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ________________________
Authorized Officer
A-5
<PAGE>
[REVERSE]
Instructions for Exercise of Warrant
------------------------------------
To exercise the Warrants evidenced hereby, the holder [For Book-Entry
--------------
Warrant Certificate: or Participant] must, by 5:00 P.M., New York time, on the
- --------------------
specified Exercise Date, deliver to the Warrant Agent at its corporate trust
department, a certified or official bank check or a wire transfer in immediately
available funds, in each case payable to the Warrant Agent at Account No. ____,
in an amount equal to the Exercise Price in full for the Warrants exercised. In
addition, the Warrant holder [For Book-Entry Warrant Certificates: or
------------------------------------
Participant] must provide the information required below and deliver this
Warrant Certificate to the Warrant Agent at the address set forth below [For
---
Book-Entry Warrant Certificates: and the Book-Entry Warrants to the Warrant
- --------------------------------
Agent in its account with the Depository designated for such purpose]. This
Warrant Certificate and the Election to Purchase must be received by the Warrant
Agent by 5:00 P.M., New York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________,
____ (the "Exercise Date"), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [_________________]
of the [title of Securities purchasable upon exercise of Warrants] [If Warrants
-----------
for Depositary Shares are to be offered: , each representing a 1/__th interest
- ----------------------------------------
in a share of [title of securities represented by the Depositary Shares]] (the
"Warrant Securities") of UNOVA, Inc., a Delaware corporation (the "Company"),
and represents that on or before the Exercise Date such holder has tendered
payment for such Warrant Securities by certified or official bank check or bank
wire transfer in immediately available funds to the order of the Company c/o
[Name and address of Warrant Agent], in the amount of $_____________ in
accordance with the terms hereof. The undersigned requests that said [principal
amount of] [number of] Warrant Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
[Unless Warrants may be exercised on only one date: If said [principal
--------------------------------------------------
amount] [number] of Warrant Securities is less than all of the Warrant
Securities purchasable hereunder, the undersigned requests that a new Warrant
Certificate
A-6
<PAGE>
evidencing the remaining balance of the Warrants evidenced hereby be issued and
delivered to the holder of the Warrant Certificate unless otherwise specified in
the instructions below.]
Dated: ______________ __, ____
Name__________________________
_________________________ (Please Print)
/ / / /- / / /- / / / / /
- -------------------------
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
_______________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
- -------------------------------------------------------------------------------
the exercising holder and the delivery of this Warrant Certificate will be
- --------------------------------------------------------------------------
deemed to be made only when actually received by the Warrant Agent. If delivery
- --------------------------------------------------------------------------------
is by mail, registered mail with return receipt requested, properly insured, is
- -------------------------------------------------------------------------------
recommended. In all cases, sufficient time should be allowed to assure timely
- ------------------------------------------------------------------------------
delivery.
- --------
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
A-7
<PAGE>
Name in which Warrant Securities
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate:
______________________________
Address to which Warrant Securities
are to be mailed if other than to the
address of the registered holder of
this Warrant Certificate as shown on
the books of the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
A-8
<PAGE>
[Except for Book-Entry Warrant Certificate:
------------------------------------------
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
_____________________________
Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than to the address of
the registered holder of this Warrant
Certificate as shown on the books of
the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code) ]
Dated:
______________________________
Signature
([Except for Book-Entry Warrant Certificate:
------------------------------------------
Signature must conform in all respects to the name
of the holder as specified on the face of this
Warrant Certificate.] If Warrant Securities, or a
Warrant Certificate evidencing unexercised
Warrants, are to be issued in a name other than
that of the registered holder hereof or are to be
delivered to an address other than the address of
such holder as shown on the books of the Warrant
Agent, the above signature must be guaranteed by a
member firm of a registered national stock
exchange, a member of the National Association of
A-9
<PAGE>
Securities Dealers, Inc., a participant in the
Security Transfer Agents Medallion Program or the
Stock Exchange Medallion Program, or by a
commercial bank or trust company having an office
or correspondent in the United States.)
SIGNATURE GUARANTEE
- -------------------
Name of Firm _____________________
Address __________________________
Area Code
and Number _______________________
Authorized
Signature ________________________
Name _____________________________
Title ____________________________
Dated: _____________________, 19__
A-10
<PAGE>
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED, ___________________ hereby sell(s), assign(s) and
transfer(s) unto___________________________________
__________________________________ ________________________
(Please print name and address (Please insert social security or
including zip code of assignee) other identifying number of assignee)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ___________ Attorney to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
Dated:
___________________________
Signature
(Signature must conform in all respects to the name of
the holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by a
member firm of a registered national securities
exchange, a member of the National Association of
Securities Dealers, Inc., a participant in the Security
Transfer Agents Medallion Program or the Stock Exchange
Medallion Program, or by a commercial bank or trust
company having an office or correspondent in the United
States)
SIGNATURE GUARANTEE
Name of Firm _____________
Address___________________
Area Code
and Number________________
Authorized
Signature_________________
Name______________________
Title_____________________
Dated:______________, 19__
A-11
<PAGE>
Exhibit 5(a)
[LETTERHEAD OF NORMAN L. ROBERTS]
December 19, 1997
Board of Directors
UNOVA, Inc.
360 No. Crescent Drive
Beverly Hills, CA 90210
Dear Sirs:
I am Senior Vice President and General Counsel of UNOVA, Inc., a Delaware
corporation (the "Company"), and am rendering this opinion in connection with
the Registration Statement on Form S-3 (the "Registration Statement") being
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Company's (i) common stock, $.01 par value per share, including rights attached
thereto to purchase shares of Series A Junior Participating Preferred Stock
pursuant to the Company's Rights Plan (collectively, the "Common Stock"); (ii)
preferred stock, $.01 par value per share (the "Preferred Stock"); (iii)
depositary shares representing shares of the Preferred Stock ("Depositary
Shares"); (iv) senior debt securities (the "Senior Debt Securities"); (v)
subordinated debt
<PAGE>
securities (the "Subordinated Debt Securities"); and (vi) warrants to purchase
Common Stock, Preferred Stock, Senior Debt Securities, Subordinated Debt
Securities, or Depositary Shares (the "Warrants"), all of which may be issued
from time to time on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act at an aggregate initial offering price not to exceed
$600,000,000.
The Senior Debt Securities may be issued pursuant to an Indenture between
the Company and The First National Bank of Chicago, as Trustee; and the
Subordinated Debt Securities may be issued pursuant to an Indenture between the
Company and The Bank of New York, as Trustee (collectively, the "Indentures").
Depositary Shares will be deposited under a Deposit Agreement between the
Company and a bank or trust company as Depositary and evidenced by Depositary
Receipts.
Warrants will be issued either independently or together with Common Stock,
Preferred Stock, Depositary Shares, Senior Debt Securities, or Subordinated Debt
Securities and will be issued pursuant to a Warrant Agreement between the
Company and a bank or trust company as Warrant Agent.
-2-
<PAGE>
I have examined the Registration Statement including the exhibits thereto
and such other documents, corporate records, and instruments and have examined
such laws and regulations as I have deemed necessary for the purposes of this
opinion. Based upon such examination, I am of the following opinion:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. The Common Stock has been duly authorized and, when (i) the
Registration Statement has become effective under the Securities Act, (ii) the
terms of the sale of the Common Stock have been duly established in conformity
with the Company's Certificate of Incorporation and By-laws and do not violate
any applicable law or result in a default under or breach of any agreement or
instrument binding on the Company and comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
and (iii) the Common Stock has been issued and sold as contemplated by the
Registration Statement, the Common Stock will be validly issued, fully paid, and
nonassessable.
3. The Preferred Stock has been duly authorized and, (i) when the
Registration Statement has become effective under
-3-
<PAGE>
the Securities Act, (ii) appropriate Certificate or Certificates of Designations
relating to a class or series of the Preferred Stock to be sold under the
Registration Statement have been duly authorized and adopted and filed with the
Secretary of State of the State of Delaware, (iii) the terms of issuance and
sale of shares of such class or series of Preferred Stock have been duly
established in conformity with the Company's Certificate of Incorporation and
By-laws and do not violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and (iv) shares of such class or series of
Preferred Stock have been duly issued and sold as contemplated by the
Registration Statement, such Preferred Stock will be validly issued, fully paid,
and nonassessable.
4. With respect to Depositary Shares, when (i) the Registration Statement
has become effective under the Securities Act, (ii) the Deposit Agreement
relating to the Depositary Shares has been duly authorized, executed and
delivered, (iii) the terms of the Depositary Shares and of their issuance have
been duly established in conformity with the Deposit Agreement and do not
violate any applicable law or result in a default under or breach of any
agreement or
-4-
<PAGE>
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, (iv) the class or series of Preferred Stock that is represented by
the Depositary Shares has been duly authorized, validly issued and delivered to
the Depositary, (v) the Depositary Receipts evidencing the Depositary Shares
have been executed, countersigned and issued against deposit of the class or
series of Preferred Stock in accordance with the Deposit Agreement, and (vi) the
Depositary Shares have been issued and sold as contemplated by the Registration
Statement, the Depositary Shares will be validly issued and the Depositary
Receipts will entitle the holders thereof to the rights specified in the
Depositary Shares and the Deposit Agreement, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
5. With respect to the Senior Debt Securities and the Subordinated Debt
Securities, when (i) the Registration Statement has become effective under the
Securities Act, the terms of such Senior Debt Securities or Subordinated Debt
Securities and of their issue and sale have been duly established in conformity
with resolutions of the Board of
-5-
<PAGE>
Directors of the Company and in conformity with the applicable Indenture, do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, and (ii) such Debt Securities have been duly executed and
authenticated in accordance with the applicable Indenture and issued and sold as
contemplated in the Registration Statement, such Debt Securities will constitute
valid and legally binding obligations of the Company, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
6. With respect to the Warrants, when (i) the Registration Statement has
become effective under the Securities Act, (ii) the Warrant Agreement relating
to the Warrants has been duly authorized, executed, and delivered, (iii) the
terms of the Warrants and of their issuance and sale have been duly established
in conformity with the Warrant Agreement and do not violate any applicable law
or result in a default under or breach of any agreement or instrument binding
upon the Company and comply with any requirement or
-6-
<PAGE>
restriction imposed by any court or governmental body having jurisdiction over
the Company, and (iv) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement and issued and sold as contemplated by the
Registration Statement, the Warrants will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
I am a member of the State Bar of California and express no opinion with
respect to the applicability of any law other than the laws of the State of
California, United States Federal laws, and the corporate law of the State of
Delaware. To the extent that any applicable document is stated to be governed
by the laws of another jurisdiction, I have assumed for purposes of this opinion
that the laws of such jurisdiction are identical to the laws of the State of
California.
I have relied as to certain matters on information obtained from public
officials, officers of the Company, and other sources believed by me to be
responsible, and I have assumed that the Indentures will be duly authorized,
executed, and delivered by the respective Trustees
-7-
<PAGE>
thereunder, the Deposit Agreement will be duly authorized, executed, and
delivered by the Depositary thereunder, and the Warrant Agreement will be duly
authorized, executed, and delivered by the Warrant Agent thereunder, assumptions
which I have not independently verified.
I hereby consent to the use of my name under the heading "Validity of
Securities" in the Prospectus forming a part of the Registration Statement and
to the use of this opinion for filing with the Registration Statement as Exhibit
(5)(a) thereto.
Very truly yours,
/s/ NORMAN L. ROBERTS
NORMAN L. ROBERTS
-8-
<PAGE>
Exhibit 12(a)
UNOVA, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Nine Months Five Months
Ended Year Ended December 31, Ended
September 30, ------------------------------------- December 31,
1997 1996 1995 1994 1993
-------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings
Earnings (loss) before income taxes and
cumulative effect of a change in
accounting principle $(140.8) $70.0 $44.0 $37.0 $ (5.1)
Add:
Acquired in-process research
and development charge 203.3
-------- -------- --------- -------- --------
$ 62.5 $70.0 $44.0 $37.0 $ (5.1)
-------- -------- --------- -------- --------
Fixed charges
Interest expense $ 15.7 $11.5 $12.2 $17.5 $ 4.7
Portion of rent expense representative of
interest factor (2) 4.1 3.5 3.2 3.6 1.5
-------- -------- --------- -------- --------
Total fixed charges (1) 19.8 15.0 15.4 21.1 6.2
-------- -------- --------- -------- --------
Earnings available for fixed charges (1) $ 82.3 $85.0 $59.4 $58.1 $ 1.1
======== ======== ========= ======== ========
Ratio of earnings to fixed charges (1), (3) 4.2 5.7 3.9 2.8 0.2
======== ======== ========= ======== ========
<CAPTION>
Year Ended July 31,
-----------------------
1993 1992
-------- ---------
<S> <C> <C>
Earnings
Earnings (loss) before income taxes and
cumulative effect of a change in
accounting principle $51.9 $41.9
Add:
Acquired in-process research
and development charge
-------- ---------
$51.9 $41.9
-------- ---------
Fixed charges
Interest expense $ 6.2 $ 8.6
Portion of rent expense representative of
interest factor (2) 3.5 3.5
-------- ---------
Total fixed charges (1) 9.7 12.1
-------- ---------
Earnings available for fixed charges (1) $61.6 $54.0
======== =========
Ratio of earnings to fixed charges (1), (3) 6.4 4.5
======== =========
</TABLE>
Notes:
1. In computing the ratio of earnings to fixed charges: (a) "earnings available
for fixed charges" consist of earnings before income taxes, cumulative
effect of a change in accounting principle, the charge for acquired in-
process research and development and fixed charges and (b) "fixed charges"
consist of interest expense and the portion of operating lease rental
expense that is representative of the interest factor.
2. The interest portion of rent expense was assumed to be one-third of the
total operating lease rent expense.
3. For the five months ended December 31, 1993, fixed charges exceeded earnings
by $5.1 million. For the nine months ended September 30, 1997, fixed charges
exceeded earnings by $140.8 million when the charge for acquired in-process
research and development is included in earnings.
<PAGE>
EXHIBIT 23(b)
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
UNOVA, Inc. (the "Company") on Form S-3 of our report dated August 13, 1997,
appearing in the Company's Registration Statement on Form 10, filed on August
18, 1997, as amended by Amendment No. 1 thereto filed October 1, 1997 and
Amendment No. 2 thereto filed October 22, 1997 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Los Angeles, California
December 19, 1997
<PAGE>
EXHIBIT 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated October 15, 1996
(except with respect to the matter discussed in Note 7, as to which the date is
November 20, 1996) included in the UNOVA, Inc. Form 10 as filed with the
Securities and Exchange Commission on August 18, 1997, and subsequently amended
on October 1, 1997 and October 22, 1997, and to all references to our Firm
included in this registration statement.
Arthur Andersen LLP
Chicago, Illinois
December 19, 1997
<PAGE>
Exhibit 24
POWER OF ATTORNEY
UNOVA, INC.
FORM S-3 REGISTRATION STATEMENT
COVERING SECURITIES
Each of the undersigned Directors and/or Officers of UNOVA, Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Alton J.
Brann, Norman L. Roberts, and Virginia S. Young, or any one of them, the true
and lawful attorneys-in-fact of such Director and/or Officer, with full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to do any and all acts and execute any and all
instruments which the said attorneys may deem necessary or advisable to enable
the Company to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any rules and regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration of Securities of the Company comprising one or more of the
following: Common Stock, Preferred Stock, Depositary Shares, Senior Debt
Securities, Subordinated Debt Securities, and Warrants, from the sale of which
the Company may receive proceeds in an aggregate amount of up to $600,000,000,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
Director and/or Officer of the Company to a Registration Statement on Form S-3
to be filed with the Securities and Exchange Commission with respect thereto, to
any and all amendments, including post-effective amendments, to the said
Registration Statement, to any additional Registration Statements to be filed
pursuant to Rule 462(b) under the Securities Act, and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statements or amendments thereto; hereby ratifying and confirming all that the
said attorneys, or any of them, has done, shall do, or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this power of
attorney this 18th day of December, 1997.
/s/ Alton J. Brann /s/ William D. Walsh
- -------------------------------------- --------------------------------------
Alton J. Brann William D. Walsh
/s/ Stephen E. Frank /s/ Michael E. Keane
- -------------------------------------- ---------------------------------------
Stephen E. Frank Michael E. Keane
<PAGE>
/s/ Orion L. Hoch /s/ Charles A. Cusumano
- -------------------------------------- --------------------------------------
Orion L. Hoch Charles A. Cusumano
/s/ Steven B. Sample
- --------------------------------------
Steven B. Sample
<PAGE>
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
UNOVA, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4647021
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
360 NORTH CRESCENT DRIVE
BEVERLY HILLS, CALIFORNIA 90210
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
2
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 17th day of December, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 17, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Unova, Inc.
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN --------
THOUSANDS RCFD BIL MIL THOU
------------ ---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............ 0081 4,499,157 1.a.
b. Interest-bearing balances(2)..................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell.............................................................. 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................... RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses........................ RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve............................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................ 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)................................. 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)............ 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)........................ 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)...................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding........ 2155 614,921 9.
10. Intangible assets (from Schedule RC-M).............................. 2143 277,105 10.
11. Other assets (from Schedule RC-F)................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11)............................ 2170 56,108,875 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip Chicago, IL 60670
FDIC Certificate: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1) RCON 6631 8,918,843 13.a.1
(2) Interest-bearing RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing RCFN 6631 352,399 13.b.1
(2) Interest-bearing RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........... RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 2,608,057 16.a
b. With a remaining maturity of than one year through three years A547 379,893 16.b
c. With a remaining maturity of more than three years............ A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 614,921 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 56,108,875 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
<TABLE>
<CAPTION>
<S> <C>
NUMBER
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . .RCFD 6724......[ N/A ] M.1
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE>
EXHIBIT 25(b)
================================================================================
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)
----------------------
UNOVA, INC.
(Exact name of obligor as specified in its charter)
Delaware 95-4647021
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
360 North Crescent Drive
Beverly Hills, California 90210
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------
<S> <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.)
-2-
<PAGE>
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.
-3-
<PAGE>
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 18th day of December, 1997.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE>
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 June 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.................... $ 7,769,502
Interest-bearing balances.............. 1,472,524
Securities:
Held-to-maturity securities............ 1,080,234
Available-for-sale securities.......... 3,046,199
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,352,045
LESS: Allowance for loan and
lease losses ..............625,042
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,726,574
Assets held in trading accounts.......... 1,611,096
Premises and fixed assets (including
capitalized leases).................... 676,729
Other real estate owned.................. 22,460
Investments in unconsolidated
subsidiaries and associated
companies.............................. 209,959
Customers' liability to this bank on
acceptances outstanding................ 1,357,731
Intangible assets........................ 720,883
Other assets............................. 1,627,267
-----------
Total assets............................. $57,514,958
===========
LIABILITIES
Deposits:
In domestic offices.................... $26,875,596
Noninterest-bearing ......11,213,657
Interest-bearing .........15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs....... 16,334,270
Noninterest-bearing .........596,369
Interest-bearing .........15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase. 1,583,157
Demand notes issued to the U.S.
Treasury............................... 303,000
Trading liabilities...................... 1,308,173
Other borrowed money:
With remaining maturity of one year
or less.............................. 2,383,570
With remaining maturity of more than
one year through three years......... 0
With remaining maturity of more than
three years.......................... 20,679
Bank's liability on acceptances
executed and outstanding............... 1,377,244
Subordinated notes and debentures........ 1,018,940
Other liabilities........................ 1,732,792
-----------
Total liabilities........................ 52,937,421
-----------
EQUITY CAPITAL
Common stock............................. 1,135,284
Surplus.................................. 731,319
Undivided profits and capital
reserves............................... 2,721,258
Net unrealized holding gains
(losses) on available-for-sale
securities............................. 1,948
Cumulative foreign currency
translation adjustments................ (12,272)
-----------
Total equity capital..................... 4,577,537
-----------
Total liabilities and equity
capital ........................... $57,514,958
===========
</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.
Thomas A. Renyi )
J. Carter Bacot )
Alan R. Griffith ) Directors
_____________________
