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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1995
REGISTRATION NO. 33-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
WITCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE ONE AMERICAN LANE 13-1870000
(STATE OR OTHER JURISDICTION OF GREENWICH, CONNECTICUT 06831 (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) (203) 552-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
------------------------
DUSTAN E. MCCOY, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ONE AMERICAN LANE
GREENWICH, CONNECTICUT 06831
(203) 552-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
DAVID G. ORMSBY, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA, 825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please 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. [ ]
------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED(2)(3) PER UNIT(3)(4) PRICE(4)(5) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock and
Common Stock........... -- -- $500,000,000 $100,000
- ------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion of, as the
case may be, the securities registered hereunder.
(2) If any Debt Securities are issued at an original issue discount, then such
greater principal amount as shall result in an aggregate initial offering
price of $500,000,000. In no event will the aggregate initial offering price
of Debt Securities, Preferred Stock and Common Stock issued under this
Registration Statement exceed $500,000,000.
(3) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act.
(4) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with, and at the time of, the issuance
by the Registrant of the securities registered hereunder.
(5) Estimated solely for the purposes of computing the registration fee pursuant
to Rule 457(o) of the Securities Act.
------------------------
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 20, 1995
PROSPECTUS
WITCO CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------------
Witco Corporation (the 'Company') intends to issue from time to time its
(a) unsecured debt securities, which may either be senior (the 'Senior Debt
Securities') or subordinated (the 'Subordinated Debt Securities'; the Senior
Debt Securities and the Subordinated Debt Securities being herein referred to
collectively as the 'Debt Securities'), (b) shares of preferred stock, without
par value (the 'Preferred Stock'), and (c) shares of common stock, par value
$5.00 per share (the 'Common Stock'), having an aggregate initial public
offering price not to exceed $500,000,000 or the equivalent thereof in one or
more foreign currencies or composite currencies, including European Currency
Units, on terms to be determined at the time of sale. The Debt Securities,
Preferred Stock and Common Stock offered hereby (collectively, the 'Offered
Securities') may be offered separately or as units with other Offered
Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a 'Prospectus Supplement').
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (a) in the case of
Debt Securities, the specific designation, aggregate principal amount, currency,
ranking, denomination, maturity, priority, interest rate (which may be variable
or fixed), time of payment of interest, terms of redemption at the option of the
Company or repayment at the option of the holder or for sinking fund payments,
the designation of the Trustee acting under the applicable Indenture and the
initial public offering price, (b) in the case of Preferred Stock, the specific
title, number of shares or fractional interests therein, and the dividend,
liquidation, redemption, conversion, voting and other rights and the initial
public offering price, (c) in the case of Common Stock, the number of shares and
the initial public offering price and (d) in the case of all Offered Securities,
whether such Offered Security will be offered separately or as a unit with other
Offered Securities, will be set forth in the accompanying Prospectus Supplement.
The Company's Common Stock is listed on the New York Stock Exchange and the
Frankfurt Stock Exchange. Any Common Stock offered will be listed, subject to
notice of issuance, on such exchanges.
The Prospectus Supplement will also contain information, where applicable,
concerning certain United States Federal income tax considerations relating to,
and any listing on a securities exchange of, the Offered Securities covered by
the Prospectus Supplement.
The Offered Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. If any
agents of the Company, or any underwriters or dealers are involved in the sale
of any Offered Securities in respect of which this Prospectus is being
delivered, the names of such agents, underwriters or dealers and any applicable
fees or commissions and the net proceeds to the Company from such sale will be
set forth in the applicable Prospectus Supplement. See 'Plan of Distribution'.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
------------------------
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 DECEMBER , 1995.
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.
<PAGE>
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the 'Commission'). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Regional Offices of the Commission at Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. In addition, copies of such
material 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
reports, proxy statements and other information concerning the Company can also
be inspected at the offices of The New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the 'Securities Act') with
respect to the securities offered hereby. For further information with respect
to the Company and the Offered Securities, reference is made to such
Registration Statement and to the exhibits thereto. Statements contained herein
concerning the provisions of certain documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are hereby incorporated by reference into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
(b) the Company's Quarterly Reports on Form 10-Q for the Quarters
ended March 31, 1995, June 30, 1995, and September 30, 1995;
(c) the Company's Current Reports on (i) Form 8-K dated as of
September 25, 1995, October 31, 1995, and December 20, 1995, respectively,
and (ii) Form 8-K/A dated as of December 20, 1995; and
(d) the Company's Report on Form 8-A dated as of March 3, 1995.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein or in any Prospectus
Supplement modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS, OTHER THAN CERTAIN EXHIBITS TO
SUCH DOCUMENTS. COPIES OF THE INDENTURES SUMMARIZED BELOW ARE ALSO AVAILABLE
UPON REQUEST. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO THE SECRETARY,
WITCO CORPORATION, ONE AMERICAN LANE, GREENWICH, CONNECTICUT 06831 (TELEPHONE:
(203) 552-2000).
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT
DELIVERED HEREWITH AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
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OF AN OFFER TO BUY ANY OFFERED SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH
THE OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
THE COMPANY
Witco is a global manufacturer and marketer of specialty chemical and
petroleum products for use in a wide variety of industrial and consumer
applications. Most of the Company's products are sold to industrial customers
for use as additives and intermediates which impart particular characteristics
to such customers' end products. Established in 1920, Witco has ranked among the
Fortune 500 largest U.S. industrial firms for many years, ranking 493 for 1994.
At December 31, 1994, the Company had 7,955 employees worldwide.
In 1992 the Company completed the acquisition of the Industrial Chemicals
and Natural Substances divisions of Schering AG. As a result of this
acquisition, the Company's international presence expanded with the addition of
a large chemical manufacturing base in Germany and operations in Spain, the
United Kingdom, France, Italy, and Ecuador.
In September 1995, Witco announced its intention to divest its Lubricants
Group, which consists of its private branded motor oils and greases and its
Golden Bear naphthenics process oils and road service materials operations.
Results of its Lubricants Group are currently reported as a discontinued
operation.
On October 19, 1995, Witco completed the acquisition of OSi Specialties
Holding Company, subsidiaries of which are engaged in the manufacture of
silicone surfactants, amine catalysts, organofunctional silanes and specialty
fluids and operate manufacturing facilities in West Virginia, Europe, South
America and Asia.
Witco is a Delaware corporation with its principal executive offices
located at One American Lane, Greenwich, Connecticut 06831 (Telephone: (203)
552-2000).
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used to replace all or
part of the Company's short-term bank loans with long-term financing in the
public markets. Additionally, net proceeds will be used for general corporate
purposes, which may include additions to working capital, capital expenditures,
stock and debt repurchases, repayment of indebtedness and acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for each of the Company's fiscal years 1994, 1993, 1992,
1991 and 1990 and the nine-month period ended September 30, 1995:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED FISCAL YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ----------------------------------------
1995 1994 1993 1992 1991 1990
- ------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
6.24 4.82 2.00 3.75 4.33 5.12
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, earnings
consist of consolidated pre-tax earnings from continuing operations,
amortization of capitalized interest, interest expense, rental expense factor
and minority interest less undistributed income of unconsolidated affiliates.
Fixed charges consist of interest incurred on indebtedness, the portion of
operating lease rentals deemed representative of the interest factor and the
amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture, dated as of
February 1, 1993 (the 'Senior Indenture'), between the Company and The Chase
Manhattan Bank, N.A., as trustee, pursuant
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to which the Company has issued an aggregate of $275,000,000 senior debt
securities. The Subordinated Debt Securities are to be issued under an Indenture
(the 'Subordinated Indenture'), between the Company and a commercial bank to be
selected as trustee. Copies of the Senior Indenture and the Subordinated
Indenture have been filed with the Commission as exhibits to the Registration
Statement. The Senior Indenture and the Subordinated Indenture are sometimes
herein referred to collectively as the 'Indentures'. The Chase Manhattan Bank,
N.A., is hereinafter referred to as the 'Senior Trustee' when referring to it in
its capacity as trustee under the Senior Indenture. The commercial bank to be
selected as trustee under the Subordinated Indenture is hereinafter referred to
as the 'Subordinated Trustee', and the term 'Trustee' as used herein refers to
either of the Senior Trustee and the Subordinated Trustee, or both, as
applicable. The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures 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. Wherever particular Sections, Articles or
defined terms of the Applicable Indenture are referred to, it is intended that
such Sections, Articles or defined terms shall be incorporated herein by
reference. Articles and Section references used herein are references to the
Applicable Indenture. Capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto by the Applicable Indenture.
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. The particular terms of the Debt Securities offered
by any Prospectus Supplement (the 'Offered Debt Securities') will be described
in the Prospectus Supplement relating to such Offered Debt Securities (the
'Applicable Prospectus Supplement').
GENERAL
The Indentures do not limit the amount of Debt Securities that may be
issued thereunder and provide that Debt Securities may be issued thereunder from
time to time in one or more series. The Debt Securities will be unsecured
obligations of the Company. The Indentures do not contain any provisions
limiting the Company's ability to incur unsecured indebtedness, including in a
highly leveraged transaction. The Indentures do not contain any provisions that
would provide protection to holders of Debt Securities against a sudden and
dramatic decline in credit quality resulting from a takeover, recapitalization
or similar restructuring, except insofar as the limitations on mortgages and
sale and leaseback transactions described below would restrict certain types of
such transactions.
The Applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (a) the title of the Offered Debt Securities; (b)
whether the Offered Debt Securities are Senior Debt Securities or Subordinated
Debt Securities; (c) any limit on the aggregate principal amount of the Offered
Debt Securities; (d) the Person to whom any interest on the Offered Debt
Securities is payable if other than the Person in whose name any such Offered
Debt Securities are registered; (e) the date or dates on which the principal of
the Offered Debt Securities will mature; (f) the rate or rates per annum (which
may be fixed or variable) at which the Offered Debt Securities will bear
interest, if any, and the date or dates from which such interest, if any, will
accrue; (g) the dates on which such interest, if any, on the Offered Debt
Securities will be payable and the Regular Record Dates for such Interest
Payment Dates; (h) the place or places where the principal of and any premium
and interest on the Offered Debt Securities shall be payable; (i) any mandatory
or optional sinking funds or analogous provisions; (j) the date, if any, after
which and the price or prices at which the Offered Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory redemption
provision; (k) the obligation of the Company, if any, to redeem or repurchase
the Offered Debt Securities at the option of the Holder; (l) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Debt Securities shall be issuable; (m) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities that will be payable upon the declaration of acceleration of the
Maturity thereof; (n) the currency of payment of principal of and any premium
and interest on the Offered Debt Securities and, if other than United States
currency, the manner of determining the equivalent thereof in United States
currency for any purpose; (o) any index used to
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determine the amount of payment of principal of, and any premium and interest
on, the Offered Debt Securities; (p) if the Offered Debt Securities will be
issuable only in the form of a Global Security, the Depositary or its nominee
with respect to the Offered Debt Securities and the circumstances under which
the Global Security may be registered for transfer or exchange in the name of a
Person other than the Depositary or its nominee; (q) the applicability, if any,
of the provisions described below under the heading 'Defeasance and Covenant
Defeasance'; (r) whether the Debt Securities are convertible into any other
securities and the terms and conditions of such convertibility; (s) any
additional Event of Default, and in the case of any Offered Debt Securities that
are Subordinated Debt Securities, any additional Event of Default that would
result in the acceleration of the Maturity thereof and (t) any other terms of
the Offered Debt Securities (Section 301).
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 of the Company in each Place of Payment maintained by the Company and
at any other office or agency maintained by the Company for such purpose, except
that, at the option of the Company, interest may be paid by mailing a check to
the address of the Person entitled thereto as it appears on the register for the
Debt Securities (Sections 301, 305, 307 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). 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).
All money paid by the Company to the Trustee or any Paying Agent for the
payment of principal of, and any premium and interest on, any Debt Security
which remains unclaimed for two years after such principal, premium or interest
shall have become due and payable, may be repaid to the Company and thereafter,
the Holder of such Debt Security shall look only to the Company for payment
thereof (Section 1003).
Both Senior Debt Securities and Subordinated Debt Securities may be issued
as Original Issue Discount Securities to be offered and sold at a substantial
discount below their stated principal amount. 'Original Issue Discount Security'
means any Debt Security which provides for an amount less than the principal
amount thereof to be due and payable upon the declaration of acceleration of the
Maturity thereof upon the occurrence of an Event of Default and the continuation
thereof (Section 101).
The Applicable Prospectus Supplement will also describe any material United
States Federal income tax consequences or other special considerations
applicable to the series of Debt Securities to which such Prospectus Supplement
relates, including those applicable to (a) Debt Securities with respect to which
payments of principal, premium or interest are determined with reference to an
index or formula (including changes in prices of particular securities,
currencies or commodities), (b) Debt Securities with respect to which principal,
premium or interest is payable in a foreign or composite currency, (c) Original
Issue Discount Securities and (d) variable rate Debt Securities that are
exchangeable for fixed rate Debt Securities.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable Prospectus Supplement, the
following provisions will apply to the Subordinated Debt Securities.
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined below) (Section
1301). 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 Indebtedness will 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 in respect of the principal of, premium, if any, or interest
on the Subordinated Debt Securities (Section 1302). In the event of the
acceleration of the Maturity of any Subordinated Debt Securities of any
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series, the holders of all Senior Indebtedness will 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 of
the principal of, premium, if any, or interest on the Subordinated Debt
Securities of such series or on account of the purchase or other acquisition of
Subordinated Debt Securities of such series (Section 1303). Accordingly, in case
of such an acceleration, all Senior Indebtedness would have to be repaid before
any payment could be made in respect of the Subordinated Debt Securities. No
payments on account of principal, premium, if any, or interest in respect of the
Subordinated Debt Securities or on account of the purchase or other acquisition
of Subordinated Debt Securities may be made if there shall have occurred and be
continuing a default in any payment with respect to any Senior Indebtedness, or
an Event of Default with respect to any Senior Indebtedness permitting the
holders thereof to accelerate the maturity thereof, of if any judicial
proceeding shall be pending with respect to any such default (Section 1304).
By reason of such subordination, in the event of the insolvency of the
Company, creditors of the Company who are not holders of Senior Indebtedness or
the Subordinated Debt Securities may recover less, ratably, than holders of
Senior Indebtedness and may recover more, ratably, than Holders of the
Subordinated Debt Securities.
'Senior Indebtedness' is defined in the Subordinated Indenture to mean the
principal of, and premium, if any, and interest on (a) all indebtedness of the
Company for money borrowed, other than the Subordinated Debt Securities, and any
other indebtedness of the Company represented by a note, bond, debenture or
other similar evidence of indebtedness (including indebtedness of others
guaranteed by the Company), in each case whether outstanding on the date of
execution of the Subordinated Indenture or thereafter created, incurred or
assumed and (b) any amendments, renewals, extensions, modifications and
refundings of any such indebtedness, unless in any case in the instrument
creating or evidencing any such indebtedness or pursuant to which it is
outstanding it is provided that such indebtedness is not superior in right of
payment to the Subordinated Debt Securities. For the purposes of this
definition, 'indebtedness for money borrowed' is defined as (a) any obligation
of, or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, (b) any deferred payment obligation of, or any such obligation
guaranteed by, the Company for the payment of the purchase price of property or
assets evidenced by a note or a similar instrument and (c) any obligation of, or
any such obligation guaranteed by, the Company for the payment of rent or other
amounts under a lease of property or assets if such obligation is required to be
classified and accounted for as a capitalized lease on the balance sheet of the
Company under generally accepted accounting principles, in the case of each of
(a), (b) and (c) whether such indebtedness or obligation is outstanding on the
date of execution of the Subordinated Indenture or thereafter created, incurred
or assumed (Section 101).
The Subordinated Indenture will not limit the amount of other indebtedness,
including Senior Indebtedness, that may be issued by the Company or any of its
Subsidiaries.
EVENTS OF DEFAULT
The Senior Indenture (with respect to any series of Senior Debt Securities
then Outstanding) and, unless otherwise provided in the Applicable Prospectus
Supplement, the Subordinated Indenture (with respect to any series of
Subordinated Debt Securities then Outstanding), define an Event of Default as
any one of the following events: (a) default in the payment of any interest on
any Debt Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days (in the case of the
Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (b) default in the payment of the principal of, or
premium, if any, on any Debt Security of that series at its Maturity (in the
case of the Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (c) default in the deposit of any sinking fund
payment when and as due by the terms of a Debt Security of that series (in the
case of the Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (d) default in the performance, or breach, of any
other covenant of the Company in the Applicable Indenture (other than covenants
or warranties included in the Applicable Indenture solely for the benefit of a
series of Debt Securities thereunder other than that series) and continuance of
such default for a period of 60 days
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after either the Trustee or the Holders of at least 10% of the principal amount
of the Outstanding Debt Securities of that series have given written notice
specifying such failure as provided in the Applicable Indenture; (e) certain
events in bankruptcy, insolvency or reorganization of the Company; (f) a default
under any evidence of indebtedness for money borrowed by the Company with a
principal amount in excess of $10,000,000, which default results in such
indebtedness becoming due and payable prior to the date it would otherwise have
become due and payable without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled within a period of 10 days after
written notice has been given to the Company by the Trustee or by the Holders of
at least 10% of the principal amount of the Outstanding Debt Securities of that
series and (g) any other Event of Default provided with respect to Debt
Securities of that series (Section 501). If an Event of Default occurs with
respect to Debt Securities of any series, the Trustee shall give the Holders of
Debt Securities of such series notice of such default; provided, however, that
in the case of a default described in (d) above, no such notice to Holders shall
be given until at least 30 days after the occurrence thereof (Section 602).
If an Event of Default with respect to the Senior Debt Securities of any
series at the time Outstanding occurs and is continuing, either the Trustee or
the Holders of at least 25% of the aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Debt Securities of that series to be due and payable immediately. Payment of the
principal of the Subordinated Debt Securities may be accelerated only in the
case of certain events of bankruptcy, insolvency or reorganization of the
Company. The Trustee and the Holders will not be entitled to accelerate the
maturity of the Subordinated Debt Securities upon the occurrence of any of the
Events of Default described above except for those described in subparagraph (e)
above (i.e., certain events in bankruptcy, insolvency or reorganization of the
Company). Accordingly, there is no right of acceleration in the case of a
default in the performance of any other covenant with respect to the
Subordinated Debt Securities, including the payment of interest or principal.
Under certain circumstances any declaration of acceleration with respect to Debt
Securities of any series may be rescinded and past defaults (except, unless
theretofore cured, a default in the payment of principal of or interest on the
Debt Securities) may be waived by the Holders of a majority in aggregate
principal amount of the Debt Securities of such series then Outstanding (Section
502).
The Indentures provide that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity (Section 603). Subject
to such provisions for the indemnification of the Trustee and to certain other
conditions, the Holders of a majority of the 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, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series (Section 512).
No Holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Applicable Indenture or for any remedy
thereunder, unless: (a) such Holder previously has given to the Trustee under
the Applicable Indenture written notice of a continuing Event of Default with
respect to Debt Securities of that series; (b) the Holders of at least 25% of
the aggregate principal amount of the Outstanding Debt Securities of that series
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee; (c) in the 60-day period following receipt
of a written notice from a Holder, the Trustee has not received from the Holders
of a majority of the aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and (d) the
Trustee shall have failed to institute such proceeding within such 60-day period
(Section 507). However, such limitations do not apply to a suit instituted by a
Holder of a Debt Security for enforcement of payment of the principal of and
premium, if any, or interest on such Debt Security on or after the respective
due dates expressed in such Debt Security (Section 508).
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligation under the
Indenture and as to any default in such performance.
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Any payment default on any Debt Security, regardless of amount, where the
aggregate principal amount of the series of such Debt Security exceeds $10
million, or any other default that causes acceleration of any such Debt
Security, would give rise to a cross-default under the Company's $675 million
Credit Agreement dated as of October 18, 1995, among the Company, the lenders
set forth therein and Morgan Guaranty Trust Company of New York, as agent.
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if such provision is made applicable to the
Debt Securities of any series pursuant to Section 301 of the Applicable
Indenture (which will be indicated in the Applicable Prospectus Supplement), the
Company may elect either (a) to defease and be discharged from any and all
obligations in respect of such Debt Securities then outstanding (including, in
the case of Subordinated Debt Securities, the provisions described above under
the heading 'Subordination of Subordinated Debt Securities' and except for
certain obligations to register the transfer of or exchange of such Debt
Securities, replace stolen, lost or mutilated Debt Securities, maintain paying
agencies and hold monies for payment in trust) or (b) to be released from its
obligations with respect to such Debt Securities concerning the subordination
provisions described above under the heading 'Subordination of Subordinated Debt
Securities' and any other covenants set forth under 'Limitation on Mortgages',
'Limitation on Sale and Leaseback Transactions', 'Consolidation, Merger and Sale
of Assets' and the occurrence of an event described under clauses (c), (e) and
(g) under the heading 'Events of Default' or under clause (d) under the heading
'Events of Default' with respect to any defeased covenant shall no longer be an
Event of Default, in the case of either (a) or (b) above if the Company
deposits, in trust, with the Trustee, money or U.S. Government Obligations,
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount sufficient, without
reinvestment, to pay all the principal of and premium, if any, and interest on
such Debt Securities on the dates such payments are due (which may include one
or more redemption dates designated by the Company) and any mandatory sinking
fund or analogous payments thereon in accordance with the terms of such Debt
Securities. Such a trust may only be established if, among other things, (A) no
Event of Default or event which, with the giving of notice or lapse of time, or
both, would become an Event of Default under the Applicable Indenture shall have
occurred and be continuing on the date of such deposit, or with regard to any
Event of Default or any event described under clause (f) under the heading
'Event of Default' shall have occurred and be continuing at any time during the
period ending on the 123rd day following such date of deposit, (B) such deposit
will not cause the Trustee to have any conflicting interest with respect to
other securities of the Company and (C) the Company shall have delivered an
Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit or
defeasance and will be subject to Federal income tax in the same manner as if
such defeasance had not occurred.
In the event the Company fails to comply with its remaining obligations
with respect to such Debt Securities under the Applicable Indenture after
exercising its covenant defeasance option and such Debt Securities are declared
due and payable because of the subsequent occurrence of any Event of Default,
the amount of money and U.S. Government Obligations on deposit with the Trustee
may be insufficient 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 will remain liable in respect of such payments (See Article Thirteen and
Article Fourteen of the Senior Indenture and the Subordinated Indenture,
respectively).
MODIFICATION AND WAIVER
Modifications and amendments of the Applicable Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than 66 2/3%
of the aggregate principal amount of the Outstanding Debt Securities of all
series issued under the Applicable Indenture and affected by the modification or
amendments (voting as a single class); provided, however, that no such
modification or amendment may, without the consent of the Holders of all Debt
Securities affected thereby (a) change the stated maturity date of the principal
of, or any installment of principal of or interest on, any Debt Security; (b)
reduce the principal amount of, or the premium, if any, or (except as otherwise
provided in
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the Applicable Prospectus Supplement) interest on, any Debt Security (including
in the case of an Original Issue Discount Security the amount payable upon
acceleration of the Maturity thereof); (c) change the place or currency of
payment of principal of, premium, if any, or interest on any Debt Security; (d)
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); (e) in the case of the
Subordinated Indenture, modify the subordination provisions in a manner adverse
to the Holders of the Subordinated Debt Securities or (f) reduce the percentage
of the principal amount of Outstanding Debt Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults (Section 902).
The Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, agree to waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture,
including the provisions described under 'Limitation on Mortgages' and
'Limitation on Sale and Leaseback' below (Section 1011). The Holders of a
majority of the aggregate principal amount of the Senior Debt Securities or the
Subordinated Debt Securities may, on behalf of all Holders of the Senior Debt
Securities or the Subordinated Debt Securities, respectively, waive any past
default under the Applicable Indenture, except a default in the payment of
principal, premium or interest or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series (Section 513).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
principal amount of an Original Issue Discount Debt 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. (Section 101).
CERTAIN COVENANTS OF THE CORPORATION
Limitation on Mortgages. The Company may not create or assume and may not
permit any Subsidiary other than a Foreign Subsidiary (as defined below) to
create or assume any Mortgage (as defined below) of or upon any of its or their
assets, real or personal, or of or upon any income of profits therefrom, without
making effective provision whereby the Debt Securities shall be secured by such
Mortgage equally and ratably with any and all other obligations and Indebtedness
thereby secured, so long as any such other obligations and Indebtedness shall be
so secured; provided that the foregoing covenant shall not apply to any of the
following: (a) the creation of any Mortgage on any after-acquired property,
contemporaneously with the acquisition thereof or within 120 days thereafter, to
secure or provide for the payment of any part of the purchase price of such
property, or the assumption by the Company or any Subsidiary of any Mortgage
upon any after-acquired property existing at the time such property is acquired,
provided that the amount of any Indebtedness secured by any such Mortgage
created or assumed shall not exceed the cost to the Company or Subsidiary, as
the case may be, of the property covered by such Mortgage (including, in the
case of the assumption of such Mortgage, the amount of the Indebtedness secured
thereby), or the fair value (as determined by the Company's Board of Directors
(the 'Board of Directors')) of such property at the time the Mortgage is created
or assumed, whichever shall be less; (b) any Mortgage on any property acquired
by the Company or any Subsidiary existing at the time of such acquisition and
any Mortgage executed by any corporation acquired by the Company or any
Subsidiary and exclusively securing any Indebtedness existing at the time of
such acquisition, and, in each case, not assumed by the Company or any
Subsidiary; (c) any Mortgage executed by any Subsidiary and exclusively securing
any Indebtedness incurred by such Subsidiary to the Company or to one or more
other Subsidiaries; (d) the creation of one or more Mortgages for the sole
purpose of renewing or refunding in whole or in part one or more of the
Mortgages referred to in clauses (a), (b) or (c) above or one or more of the
Mortgages existing at the date of execution of the Applicable Indenture on any
assets of the Company or a Subsidiary; provided that the aggregate amount of
Indebtedness secured by any such renewal or refunding Mortgage shall not exceed
the aggregate amount of Indebtedness secured by the Mortgage or Mortgages being
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renewed or refunded at the time of such renewal or refunding and that such
renewal or refunding Mortgage shall and improvements thereon be limited to (i)
all or any part of the same property (and improvements thereon) which secured
the Mortgage renewed or refunded or (ii) in the case of a simultaneous renewal
or refunding of one or more Mortgages on contiguous property (and improvements
thereon), all or any part of the same contiguous property which secured the
Mortgaged renewed or refunded; and provided further that in the case of any
renewal or refunding of a Mortgage of the type referred to in subsection (c)
above or this subsection (d), neither the Company nor any Subsidiary (other than
the Subsidiary whose property is subject thereto) shall assume any Indebtedness
secured by such renewal or refunding Mortgage; (e) liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in good faith; (f) liens in
favor of the United States of America, or any State or subdivision thereof, or
any other county or subdivision thereof where the Company or any Subsidiary may
transact any of its business, or any governmental agency, to the extent required
in the ordinary course of business; (g) liens for taxes or assessments or
governmental charges or levies, if such taxes, assessments, governmental charges
or levies shall not at the time be due and payable, or if the same thereafter
can be paid without penalty, or if the same are being contested in good faith by
appropriate proceedings; (h) pledges or deposits to secure payment of worker's
compensation or insurance premiums, or in connection with tenders, bids or
contracts (other than contracts for the payment of money) or leases, deposits to
secure surety or appeal bonds, pledges or deposits in connection with contracts
made with or at the request of the United States of America or any State or any
agency of the United States or any such State, and pledges or deposits for
purposes similar to any of the above in the ordinary course of business and (i)
liens created by or resulting from any litigation or legal or administrative
proceeding which at the time is currently being contested in good faith by
appropriate proceedings; leases made or existing on property acquired in the
ordinary course of business and landlords, liens on property held under lease
(Section 1008).
Notwithstanding the foregoing limitation on Mortgages, the Company or any
Subsidiary may grant easements for ingress and egress over property owned by the
Company or such Subsidiary in favor of the United States or any state (or any
instrumentality of either) as is necessary to permit the attachment or removal
of any equipment or other property designed primarily for the purpose of
pollution control and with respect to which the Company or any Subsidiary may
have granted a lien or transferred title to such government or governmental
agency pursuant to any exception to the limitation on Mortgages or the
limitation on sale and leaseback described below in connection with the
financing of such anti-pollution equipment or other property; provided that any
such Mortgage on such anti-pollution equipment or property does not apply to any
other property owned by the Company or any Subsidiary and any such transfer of
title to such anti-pollution equipment or property does not include transfer of
title to any other property theretofore owned by the Company or any Subsidiary
(Section 1008).
The sale or other transfer of oil, gas or other minerals in place for a
period of time until, or in an amount such that, the transferee will realize
therefrom a specified amount (however determined) of money for such minerals, or
the sale or other transfer of any other interest in property of the character
commonly referred to as a production payment shall not be deemed to create any
Mortgage upon the assets of the Company or any Subsidiary (Section 1008). The
foregoing limitation on Mortgages is subject to the provision for 'Exempted
Indebtedness' described below (Section 1008).
Limitation on Sale and Leaseback Transactions. The Company may not, nor may
it permit any Subsidiary to enter into any arrangement with any person providing
for the leasing by the Company or any Subsidiary of any Principal Property
(except for temporary leases of not more than three years and except for leases
between the Company and a Subsidiary or between Subsidiaries), which property
has been or is to be sold or transferred by the Company or such Subsidiary to
such person unless either (a) the Company or such Subsidiary would be permitted
under the covenant described above under 'Limitation on Mortgages' to incur
Indebtedness secured by a Mortgage on the property to be leased equal in amount
to the Attributable Debt (as defined below) with respect to such sale and
leaseback transaction without equally and ratably securing the Debt Securities
or (b) the Company shall apply an amount at least equal to the net proceeds of
such sale or transfer or the fair value as determined by the Board of Directors
of such property, whichever is greater, to the redemption or retirement, within
120 days of the effective date of any such arrangement of Indebtedness of the
Company which is not subordinate or junior in right of payment to the Debt
Securities; provided, however, that in lieu of
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applying all or any part of such amount to such redemption or retirement of such
Indebtedness, the Company may, within 75 days after such sale voluntarily retire
Indebtedness, excluding redemption and retirement of Indebtedness pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment at
maturity, and thereby reduce the amount of cash which the Company shall be
required to apply to the redemption or retirement of Indebtedness under this
Section by an amount equal to the aggregate of the principal amount of the
Indebtedness, as the case may be, so redeemed or retired.
The foregoing limitations on sale and leaseback transactions are subject to
the provision for 'Exempted Indebtedness' described below (Section 1009).
Exempted Indebtedness. Notwithstanding the provisions of the Indentures
which provide for limitations on Mortgages and on sale and leaseback
transactions, the Company and its Subsidiaries may incur Indebtedness secured by
Mortgages without securing the Debt Securities or may enter into sale and
leaseback transactions without redeeming or retiring other Indebtedness, or
there may be a combination of such transactions, if the sum of (a) the aggregate
amount of such otherwise prohibited Indebtedness then outstanding and (b)
Attributable Debt relating to otherwise prohibited sale and leaseback
transactions under then existing leases would not exceed 10% of Consolidated Net
Tangible Assets (as defined below) (Section 1010).
Leveraged Transactions. Except for the limitations on mortgages and sale
and leaseback transactions referred to above and on consolidations, mergers or
transfers of the Company's assets substantially as an entirety referred to
below, the Indentures and the terms of the Debt Securities do not contain any
covenants or other provisions designed to afford holders of any Debt Securities
protection in the event of a highly leveraged transaction involving the Company.
Applicability of Covenants to the Subordinated Securities. Any series of
Subordinated Securities may provide that either or both of the covenants
described above shall not be applicable to the Securities of such series
(Section 301).
Certain Definitions. Certain terms are defined in the Indentures (Section
101) and are used in this Prospectus as follows:
'Attributable Debt' means, as to any particular lease relating to a
sale and lease back transaction of a Principal Property under which any
Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent (discounted from the
respective due dates thereof at the interest rate from time to time being
used by the Company to determine its liability in respect of capitalized
leases) required to be paid by such Person under such lease during the
remaining term thereof. The net amount of rent required to be paid under
any such lease for any such period shall be the total amount of the rent
payable by the lessee with respect to such period, but may exclude amounts
required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, utilities, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount of rent shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first day upon which it may be so
terminated.
'Consolidated Net Tangible Assets' means total consolidated assets of
the Company and its Subsidiaries, less the following: (a) current
liabilities of the Company and its Subsidiaries; (b) all depreciation and
valuation reserves and all other reserves (except (i) reserves for
contingencies which have not been allocated to any particular purpose and
(ii) deferred credits, including deferred federal and foreign income taxes
and deferred investment tax credits) of the Company and its Subsidiaries;
(c) the net book amount of all intangible assets of the Company and its
Subsidiaries, including, but without limitation, the unamortized portions
of such items as goodwill, trademarks, trade names, patents and debt
discount and expense less debt premium and (d) appropriate adjustments on
account of minority interests of other Persons holding stock in
Subsidiaries.
'Foreign Subsidiary' means any Subsidiary substantially all of the
operating assets of which are located, and substantially all of the
business for which is carried on outside the United States of America and
its territories and possessions, and includes any Subsidiary formed under
the laws of
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any State of the United States of America which is primarily engaged in
financing the operations of the Company or its Subsidiaries, or both,
outside the United States of America and its territories and possessions.
'Indebtedness' means all items of indebtedness or liability (except
capital and surplus) which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown on
the liability side of a balance sheet as at the date as of which
indebtedness is to be determined, indebtedness secured by any Mortgage
existing on property owned subject to such Mortgage, whether or not the
indebtedness secured thereby shall have been assumed and guarantees,
endorsements (other than for purposes of collection) and other contingent
obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in
indebtedness under the preceding clauses.
'Mortgage' means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other
similar encumbrance.
'Principal Property' means any manufacturing facility located within
the United States of America owned or leased by the Company or any
Subsidiary except any such manufacturing facility which the Board of
Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety.
'Subsidiary' means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, 'voting stock' means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company (such transaction being herein
referred to as a 'Merger Transaction') unless: (a) in case the Company shall
consolidate with or merge into another person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the Person
formed by such Merger Transaction shall be a corporation, partnership or trust
validly organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by
supplemental indenture, the payment of the principal of and any premium and
interest on all the Debt Securities and the performance of every covenant of the
Indentures; (b) immediately after giving effect to any such Merger Transaction
and treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such Merger Transaction as having been incurred by the
Company or such Subsidiary at the time of such Merger Transaction, no Event of
Default shall have happened and be continuing; (c) if, as a result of any Merger
Transaction, properties or assets of the Company would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which would not
be permitted by the Indentures, the Company or such successor Person shall take
such steps as shall be necessary to secure the Debt Securities equally and
ratably with (or prior to) all indebtedness secured thereby and (d) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such Merger Transaction and any required supplemental
indenture comply with all the provisions of this covenant (Section Eight).
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock, Preferred Stock or any other
security, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, provisions for adjustment of the
conversion price or the exchange ratio
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and provisions affecting conversion or exchange in the event of the redemption
of such Debt Securities, will be set forth in the Prospectus Supplement relating
thereto.
GLOBAL SECURITIES
The Debt Securities may be issued in whole or in part in the form of one or
more Global Securities that will be deposited with, or on behalf of, a
depositary (the 'Depositary') identified in the Applicable Prospectus Supplement
relating to such Debt Securities. Unless and until it is exchangeable in whole
or in part for Debt Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor of such Depositary or a nominee of such successor (Section 305).
The specific terms of the depositary arrangement, if any, with respect to a
series of Debt Securities will be described in the Applicable Prospectus
Supplement relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons who have accounts with the Depositary for such Global Security or its
nominee ('Participants') or persons who may hold interests through Participants.
Such accounts shall be designated by the underwriters or agents with respect to
the Debt Securities underwritten or solicited by them or by the Company in the
case of Debt Securities offered and sold directly by the Company. The Company
will obtain confirmation from the Depositary that upon the issuance of a Global
Security, the Depositary for such Global Security will credit, on its book-entry
registration and transfer system, the Participants' accounts with the respective
principal amounts of the Debt Securities represented by such Global Security.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of such ownership interests will be effected only through records
maintained by the Depositary (with respect to interests of Participants), and on
the records of Participants (with respect to interests of persons held through
Participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to own, transfer or pledge
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Applicable Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have the Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of the Debt Securities in definitive
form and will not be considered the owners or Holders thereof under the
Applicable Indenture. Accordingly, each person owning a beneficial interest in
such a Global Security must rely on the procedures of the Depositary and, if
such person is not a Participant, on the procedures of the Participant through
which such person owns its interest, to exercise any rights of a Holder under
the Applicable Indenture. The Company understands that under existing industry
practices, in the event the Company requests any action of Holders or an owner
of a beneficial interest in such Global Security desires to give or take any
action which a Holder is entitled to give or take under the Applicable
Indenture, the Depositary would authorize the Participants holding the relevant
beneficial interests to give or take such action, and such Participants would
authorize beneficial owners owning through such Participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Payment of principal of, and premium and interest, if any, on, Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
the Global Security representing such Debt Securities. None of the Company, the
Trustee, any Paying Agent or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
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The Company will obtain confirmation from the Depositary that upon receipt
of any payment of principal of, or premium or interest on, a Global Security,
the Depositary will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary.
Payments by Participants to owners of beneficial interests in such Global
Security held through such Participants will be the responsibility of such
Participants, as is now the case with securities held for the accounts of
customers registered in 'street name'.
If the Depositary for any Debt Securities represented by a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within ninety days after
receiving such notice or becoming aware that the Depositary is no longer so
registered or if an Event of Default, or an event which with notice, or lapse of
time or both would be an event of default has occurred and is continuing, the
Company will issue such Debt Securities in definitive form upon registration or
transfer of, or in exchange for, such Global Security. In addition, the Company
may, at any time, and in its sole discretion, determine not to have the Debt
Securities represented by one or more Global Securities and, in such event, will
issue Debt Securities in definitive form in exchange for all of the Global
Securities representing such Debt Securities. (Section 305).
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The authorized stock of the Company consists of 100,000,000 shares of
Common Stock, par value $5.00 per share, 14,386 shares of $2.65 Cumulative
Convertible Preferred Stock, par value $1.00 per share, and 8,300,000 shares of
Series Preferred Stock, without par value (the 'Series Preferred Stock'). On
November 30, 1995, there were 56,433,979 shares of Common Stock and 6,880 shares
of $2.65 Cumulative Convertible Preferred Stock outstanding. 300,000 shares of
Series A Participating Cumulative Preferred Stock, without par value, have been
authorized for issuance upon exercise of rights issued pursuant to the Rights
Agreement described below under the heading 'Stockholder Rights Plan'. An
aggregate of 115,636 shares of Common Stock are reserved for issuance upon
conversion of the Company's $2.65 Cumulative Convertible Preferred Stock and
issuance under the Company's various stock and compensation incentive plans.
The following statements with respect to the capital stock of the Company
are subject to the detailed provisions of the Company's Restated Certificate of
Incorporation (the 'Restated Certificate'), the Company's By-laws, (the
'By-laws') and the Rights Agreement described below under the heading
'Stockholder Rights Plan', as currently in effect. These statements do not
purport to be complete, or to give full effect to the terms of the provisions of
statutory or common law, and are subject to, and are qualified in their entirety
by reference to, the terms of the Restated Certificate, the By-laws and the
Rights Agreement, which are filed as Exhibits to the Registration Statement of
which this Prospectus is a part. The following descriptions of the terms of the
Common Stock and the Preferred Stock set forth certain general terms and
provisions of the Common Stock and the Preferred Stock to which any Prospectus
Supplement may relate (the 'Applicable Prospectus Supplement').
PREFERRED STOCK
Specific terms of any series of the Preferred Stock offered by the
Applicable Prospectus Supplement will be described in the Applicable Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Restated Certificate and the certificate of
designation (a 'Certificate of Designation') relating to each series of the
Preferred Stock which will be
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filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Preferred Stock.
General. Under the Restated Certificate, the Board of Directors is
authorized, without further shareholder action, to provide for the issuance of
up to 8,300,000 shares of Series Preferred Stock, without par value (the 'Series
Preferred Stock'), in one or more series, and to fix the designations, terms,
rights, restrictions and qualifications of the shares of the series including
any preferences, voting powers, dividend rights and redemption, sinking fund and
conversion rights. Subject to the terms of any other Preferred Stock outstanding
at the time, the Board of Directors may increase or decrease the number of
shares or alter the designation or classify or reclassify any unissued shares of
a particular series of Series Preferred Stock by fixing or altering in certain
respects, from time to time before issuing the shares, any terms, rights,
restrictions and qualifications of such shares.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Applicable Prospectus Supplement. Reference is made to the Applicable Prospectus
Supplement for specific terms, including: (a) the title and liquidation
preference per share of such Preferred Stock and the number of shares offered;
(b) the price at which such Preferred Stock will be issued; (c) the dividend
rate (or method of calculation), the dates on which dividends shall be payable
and the dates from which dividends shall commence to accumulate; (d) any
redemption or sinking fund provisions of such Preferred Stock; (e) any
conversion provisions of such Preferred Stock; (f) the voting rights, if any, of
such Preferred Stock and (g) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations and
restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable. The
rights of the holders of each series of the Preferred Stock will be subordinate
to those of the Company's general creditors.
Dividend Rights. The Preferred Stock will be preferred over the Common
Stock as to payment of dividends. Before any dividends or distributions (other
than dividends or distributions payable in Common Stock) on the Common Stock
shall be declared and set apart for payment or paid, the holders of shares of
each series of Preferred Stock shall be entitled to receive dividends (either in
cash, shares of Common Stock or Preferred Stock, or otherwise) when, as and if
declared by the Board of Directors, at the rate and on the date or dates as set
forth in the Applicable Prospectus Supplement. With respect to each series of
Preferred Stock, the dividends on each share of such series may be cumulative or
noncumulative, as provided in the Applicable Prospectus Supplement. If the Board
of Directors fails to declare a dividend payable on a dividend payment date on
any series of Preferred Stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost and the Company will have no obligation to
pay any dividend for such period, whether or not dividends on such series are
declared payable on any future dividend payment dates. Dividends on the shares
of each series of Preferred Stock for which dividends are cumulative will accrue
from the date fixed by the Board of Directors. Unless dividends on all
outstanding shares of series of Preferred Stock having cumulative dividend
rights have been fully paid, no dividend may be paid on the Common Stock or any
other class of stock ranking junior to the Preferred Stock.
Liquidation Preferences. Unless otherwise specified in the Applicable
Prospectus Supplement, in the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, the holders of each series
of the Preferred Stock will be entitled to receive out of the assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to the holders of Common Stock or any other shares of stock of
the Company ranking junior as to such distribution to such series of the
Preferred Stock, the amount (if any) set forth in the Applicable Prospectus
Supplement, together with any unpaid cumulative dividends. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Preferred Stock of any series are not
paid in full, the holders of the Preferred Stock of such series and of any other
series of equal preference will share ratably in any such distribution of assets
of the Company in proportion to the full respective preferential amounts to
which they are entitled. After payment to the holders of the Preferred Stock of
each series that has a liquidation preference of the full preferential amounts
of the liquidation distribution to which they are entitled, the holders of each
such
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series of the Preferred Stock will be entitled to no further participation in
any distribution of assets by the Company. A consolidation, merger or sale of
all or substantially all of the assets of the Company would not be considered a
'liquidation' within the meaning of the foregoing provisions.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
from time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case upon
terms, at the time and at the redemption prices set forth in the Applicable
Prospectus Supplement. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of Preferred
Stock of the Company.
Conversion and Exchange Rights. The terms, if any, on which shares of
Preferred Stock of any series may be exchanged for or converted into shares of
Common Stock, or another series of Preferred Stock or any other security will be
set forth in the Applicable Prospectus Supplement. Such terms may include
provisions for conversion, either mandatory, at the option of the holder, or at
the option of the Company, in which case the number of shares of Common Stock,
the shares of another series of Preferred Stock or the amount of any other
securities to be received by the holders of Preferred Stock would be calculated
as of a time and in the manner stated in the Applicable Prospectus Supplement.
Voting. Unless otherwise provided in the Applicable Prospectus Supplement
and except as provided below in the discussion of the $2.65 Cumulative
Convertible Preferred Stock, the holders of any series of Preferred Stock shall
be entitled to one vote for each share of Preferred Stock held by them on all
matters properly presented to shareholders, the holders of Common Stock and the
holders of all series of Preferred Stock voting together as one class.
$2.65 Cumulative Convertible Preferred Stock. The Company has the authority
to issue 14,386 shares of $2.65 Cumulative Convertible Preferred Stock, par
value $1.00 per share (the '$2.65 Preferred Stock'), of which 6,880 such shares
were outstanding on November 30, 1995. Annual cumulative dividends of $2.65 per
share are payable quarterly as and if declared by the Board of Directors. The
$2.65 Preferred Stock is preferred with respect to dividends to both the Series
Preferred Stock and the Common Stock. Each share of $2.65 Preferred Stock is
convertible at any time at the option of the holder thereof into 16.8075 shares
of Common Stock, subject to adjustment in certain circumstances. The $2.65
Preferred Stock is redeemable in whole or in part at the option of the Company,
at $66.00 per share plus any accrued and unpaid dividends to the redemption
date. The holders of $2.65 Preferred Stock are entitled to one vote for each
share held. Except as provided below, the holders of $2.65 Preferred Stock and
the holders of Common Stock (and the holders of any other capital stock of the
Company at the time entitled thereto) vote together as one class. The holders of
the $2.65 Preferred Stock have the right to elect two directors of the Company
if the equivalent of six quarterly dividends payable on the $2.65 Preferred
Stock are in arrears, but whenever all arrears in dividends have been paid and
dividends for the current quarter have been provided for, such holders have no
right to participate in the election of directors. In the case of the voluntary
or involuntary liquidation, dissolution or winding up of the Company, holders of
shares of $2.65 Preferred Stock are entitled to receive the liquidation
preference of $66.00 per share, plus an amount equal to any accrued and unpaid
dividends to the payment date.
So long as any shares of $2.65 Preferred Stock are outstanding the Company
cannot (a) increase the authorized amount of $2.65 Preferred Stock without the
affirmative vote of the holders of at least a majority of the $2.65 Preferred
Stock then outstanding or (b) create any class of stock ranking on a parity with
or ranking prior to the $2.65 Preferred Stock either as to dividends or
distribution of assets in liquidation, or change the preferences, powers, rights
or limitations with respect to the $2.65 Preferred Stock in any material respect
prejudicial to the holders thereof, without the affirmative vote of the holders
of at least two-thirds of the $2.65 Preferred Stock at the time outstanding.
COMMON STOCK
Dividends. After the requirements with respect to preferential dividends
upon the Preferred Stock have been met, the holders of the Common Stock are
entitled to receive such dividends as may be declared from time to time by the
Board of Directors.
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Voting Rights. Each holder of Common Stock shall be entitled to one vote
for each share held and, except as otherwise provided in the Applicable
Prospectus Supplement or in the section of this Prospectus entitled '$2.65
Cumulative Convertible Preferred Stock', the Common Stock and the Preferred
Stock (and any other capital stock of the Company at the time entitled thereto)
shall vote together as one class. Holders of Common Stock are entitled to
receive, upon any liquidation of the Company, all remaining assets available for
distribution to stockholders after satisfaction of the Company's liabilities and
the preferential rights of any Preferred Stock that may then be issued and
outstanding. The outstanding shares of Common Stock are, and the shares of
Common Stock issuable upon conversion of the $2.65 Preferred Stock will be,
fully paid and nonassessable. The holders of Common Stock have no preemptive,
conversion or redemption rights.
The transfer agent and registrar of the Common Stock is First Chicago Trust
Company of New York, Jersey City, New Jersey.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
The following summary of certain provisions of the Company's Restated
Certificate and By-laws does not purport to be complete and is subject to and
qualified in its entirety by reference to the Restated Certificate and the
By-laws which are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is a part.
Fair Price Provisions. The Company's Restated Certificate requires approval
by holders of at least 80% of the Company's outstanding voting stock for mergers
and certain other corporate transactions ('Business Combinations') that involve
a beneficial owner of (or person that has announced an intention to acquire) 10%
or more of the voting stock of the Company (an 'Interested Stockholder'), unless
(a) the transaction has been approved by a majority of certain directors
('Continuing Directors') who constitute a majority of the entire Board of
Directors of the Company at such time or (b) certain fair price criteria (the
'Fair Price Criteria') and procedural requirements are satisfied. These
provisions of the Restated Certificate may be amended or repealed only by the
affirmative vote of the holders of 80% or more of the stock of the Company
entitled to vote in the election of directors.
A 'Continuing Director' is any member of the Board of Directors who is not
an affiliate or associate of an Interested Stockholder and was or becomes a
director prior to the time that an Interested Stockholder became an Interested
Stockholder, and any successor of a Continuing Director who is unaffiliated with
the Interested Stockholder and is recommended to succeed a Continuing Director
by a majority of the Continuing Directors then on the Board.
The Fair Price Criteria require that in the event of a Business Combination
in which cash or other consideration would be paid to the Company's
stockholders, the aggregate amount of the cash and fair market value of
consideration other than cash to be received per share by the holders of Common
Stock in such Business Combination shall be in the same form and of the same
kind as the consideration paid by the Interested Stockholder to acquire the
initial 10% of such Interested Stockholder's Common Stock shares and shall be at
least equal to the highest per share price paid by such Interested Stockholder
in acquiring any Common Stock of the Company prior to the Business Combination.
The Fair Price Criteria also require that the aggregate amount of cash to
be received per share in such Business Combination by the holders of shares of
any class of Preferred Stock shall be the greater of (a) the highest per share
price paid by the Interested Stockholder in acquiring any shares of such
Preferred Stock or (b) the highest preferential liquidation amount per share to
which the holders of such class of Preferred Stock are entitled in the event of
a voluntary or involuntary liquidation of the Company.
Classification of Directors; Advance Notice of Nomination. The Company's
Restated Certificate and By-laws provide that its Board of Directors shall be
divided into three classes, each class being as nearly equal in number as
possible, and that at each annual meeting of the Company's stockholders, the
successors to the Directors whose terms expire that year shall be elected for a
term of three years. Within the limit of not less than 12 nor more than 18
Directors, the number of Directors is fixed by the Board of Directors. Newly
created directorships and any vacancies on the Board of Directors are filled
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by a majority vote of the remaining Directors then in office, even if less than
a quorum. Directors may be removed by the affirmative vote of the holders of at
least 80% of the outstanding shares of the Company entitled to vote for the
election of directors, but only for cause.
Any stockholder intending to nominate a person for election as Director at
a meeting of stockholders may do so only if written notice of the stockholder's
intent to make such nomination, including certain related information specified
in the By-laws, is given to the Secretary of the Company not later than 90 days
prior to the anniversary date of the immediately proceeding annual meeting or
not later than the tenth day following the date on which notice of the date of
the annual meeting is first given to stockholders, whichever is earlier.
STOCKHOLDER RIGHTS PLAN
On March 2, 1995, the Company entered into a Rights Agreement with First
Chicago Trust Company of New York, as Rights Agent (the 'Rights Agreement'),
which is a stockholder rights plan providing for a dividend of one Preferred
Stock purchase right for each outstanding share of Common Stock of the Company
(the 'Rights'). The dividend was issued to stockholders of record on the date of
the adoption of the Rights Agreement, and holders of shares of Common Stock
issued subsequent to that date are issued Rights with their shares. The Rights
trade automatically with shares of Common Stock and become exercisable only
under certain circumstances as described below. The Rights are designed to
protect the interests of the Company and its stockholders against coercive
takeover tactics. The purpose of the Rights is to encourage potential acquirers
to negotiate with the Company's Board of Directors prior to attempting a
takeover and to provide the Board with leverage in negotiating on behalf of all
stockholders the terms of any proposed takeover. The Rights may have certain
anti-takeover effects. The Rights should not, however, interfere with any merger
or other business combination approved by the Board of Directors.
Until a Right is exercised, the holder of a Right, as such, will have no
rights as a stockholder of the Company including, without limitation, the right
to vote or receive dividends. Upon becoming exercisable, each Right will entitle
the holder thereof to purchase from the Company one one-thousandth (1/1000) of a
share of Series A Participating Cumulative Preferred Stock, without par value,
at a purchase price of $110 per Right, subject to adjustment (the 'Purchase
Price'). In general, the Rights will not be exercisable until the earlier of (a)
such time as the Company learns that a person or group (including any affiliate
or associate of such person or group) has acquired, or has obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common Shares
(such person or group being an 'Acquiring Person'), unless provisions preventing
accidental triggering of the Rights apply and (b) the close of business on such
date, if any, as may be designated by the Board of Directors of the Company
following the commencement of, or first public disclosure of an intent to
commence, a tender or exchange offer for 15% or more of the outstanding Common
Shares (the earlier of such dates being called the 'Distribution Date').
In the event the Company is acquired in a merger or other business
combination by an Acquiring Person or an associate or affiliate of an Acquiring
Person that is a publicly traded corporation or 50% or more of the Company's
assets or assets representing 50% or more of the Company's revenues or cash flow
are sold, leased, exchanged or otherwise transferred (in one or more
transactions) to an Acquiring Person or an associate or affiliate of an
Acquiring Person that is a publicly traded corporation, each Right will entitle
its holder (subject to the next paragraph) to purchase, for the Purchase Price,
that number of common shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase Price. In the event
the Company is acquired in a merger or other business combination by an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity or 50% or more of the Company's assets or assets
representing 50% or more of the Company's revenues or cash flow are sold,
leased, exchanged or otherwise transferred (in one or more transactions) to an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity, each Right will entitle its holder (subject to the
next paragraph) to purchase, for the Purchase Price, at such holder's option,
(a) that number of shares of the surviving corporation in the transaction with
such entity (which surviving corporation could be the Company) which at the time
of the transaction would have a book value of twice the Purchase Price, (b) that
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number of shares of such entity which at the time of the transaction would have
a book value of twice the Purchase Price or (c) if such entity has an affiliate
which has publicly traded common shares, that number of common shares of such
affiliate which at the time of the transaction would have a market value of
twice the Purchase Price.
Any Rights that are at any time beneficially owned by an Acquiring Person
(or any affiliate or associate of an Acquiring Person) will be null and void and
nontransferable and any holder of any such Right (including any purported
transferee or subsequent holder) will be unable to exercise or transfer any such
Right.
The Rights will expire at the close of business on March 2, 2005 (the
'Expiration Date'), unless earlier redeemed. At any time prior to the earlier of
(a) such time as a person or group becomes an Acquiring Person and (b) the
Expiration Date, the Board of Directors may redeem the Right in whole, but not
in part, at a price (in cash or Common Shares or other securities of the Company
deemed by the Board of Directors to be at least equivalent in value) of $.01 per
Right (which amount is subject to adjustment as provided in the Rights
Agreement).
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by the description of the Rights contained in the
Rights Agreement.
CERTAIN ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents an
'interested stockholder' (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a 'business
combination' (as defined in Section 203) with the Company (or its majority-owned
subsidiaries) for three years following the date such person became an
interested stockholder unless (a) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination, (b) upon consummation of the transaction that resulted in
the interested stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the Company's voting stock outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the Company and by employee stock plans that do not provide
employees with the rights to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer) or (c)
following the transaction in which such person became an interested stockholder,
the business combination is approved by the Company's Board of Directors and
approved at a meeting of stockholders by the affirmative vote of the holders of
at least two-thirds of the Company's outstanding voting stock not owned by the
interested stockholder. Under Section 203, the restrictions described above also
do not apply to certain business combinations proposed by an interested
stockholder following the earlier of the announcement or notification of one of
certain extraordinary transactions involving the Company and a Person who had
not been an interested stockholder during the previous three years or who became
an interested stockholder with the approval of a majority of the Company's
directors, if such extraordinary transaction is approved or not opposed by a
majority of the directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were recommended for
election or elected to succeed such directors by a majority of such directors.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside the United States
through underwriters or dealers, directly to one or more purchasers or through
agents. Such underwriters may include J.P. Morgan Securities Inc., Goldman,
Sachs & Co. and Smith Barney Inc. The Prospectus Supplement with respect to the
Offered Securities will set forth the terms of the offering of the Offered
Securities, which may include the name or names of any underwriters, dealers or
agents, the purchase price of the Offered Securities and the net proceeds to the
Company from such sale, any delayed delivery arrangements, any underwriting
discounts or other items constituting underwriters' compensation, any
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discounts or concessions allowed or re-allowed or paid to dealers and any
securities exchanges on which the Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more firms
acting as underwriters, as designated. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters or
agents to purchase the Offered Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all the Offered
Securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
If dealers are utilized in the sale of any Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealers, as principals. The dealers may then resell such
Offered Securities to the public at varying prices to be determined by such
dealers at the time of resale. The name of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time at a fixed price or prices, which
may be changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Offered Securities with respect to which
this Prospectus is delivered will be named and any commissions payable by the
Company to such agent will be set forth in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
Offered Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the applicable Prospectus Supplement.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters, agents and dealers participating in the
distribution of the Offered Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of the Offered Securities by them may be deemed to be underwriting
discounts or commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make with respect thereto. Agents, dealers and underwriters may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Offered Securities will be passed upon
for the Company by Cravath, Swaine & Moore, New York, New York.
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EXPERTS
The consolidated financial statements and schedule of the Company at
December 31, 1994 and 1993 and for each of the three years in the period ended
December 31, 1994, appearing in the Company's Current Report on Form 8-K dated
as of December 20, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information for the nine-month periods ended September 30, 1995 and 1994,
incorporated herein by reference, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995, and incorporated herein by reference, states that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted considering the limited nature of the review procedures applied.
The independent auditors are not subject to the liability provisions of Section
11 of the Securities Act for their report on the unaudited interim financial
information because their report is not a 'report' or a 'part' of the
Registration Statement prepared or certified by the auditors within the meaning
of Sections 7 and 11 of the Securities Act.
The consolidated financial statements and schedules of OSi Specialties
Holding Company and subsidiaries at December 31, 1994 and 1993 and for the year
ended December 31, 1994, and the period from July 1, 1993, through December 31,
1993, incorporated by reference in the Company's Current Report on Form 8-K/A
dated as of December 20, 1995, and incorporated herein by reference have been
audited by Arthur Andersen LLP, independent auditors, as set forth in their
report thereon included therein. Such consolidated financial statements and
schedules are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
The combined financial statements and schedule of the Worldwide Silicone
Business of Union Carbide Corporation (the predecessor company of OSi
Specialties Holding Company) for the six-month period ended June 30, 1993,
incorporated by reference in the Company's Current Report on Form 8-K/A dated as
of December 20, 1995, and incorporated herein by reference have been audited by
KPMG Peat Marwick LLP, independent auditors, as set forth in their report
thereon included therein. Such combined financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement................................... $100,000
Legal Fees and Expenses................................................. 35,000
Accounting Fees and Expenses............................................ 25,000
Trustee's Fees and Expenses............................................. 10,000
Blue Sky Fees and Expenses.............................................. 10,000
Printing and Engraving Fees............................................. 15,000
Miscellaneous........................................................... 10,000
--------
Total.............................................................. $205,000
--------
--------
</TABLE>
All of the above amounts, other than the filing fee, are estimates only.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware reads
as follows:
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
II-1
<PAGE>
<PAGE>
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he had met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(i) by the board of directors by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out his status as such, whether or not the corporation
would have the power to indemnify him against such liability under this
section.
(h) For purposes for this section, references, to 'the corporation'
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to 'other enterprises'
shall include employee benefit plans; references to 'fines' shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to 'serving at the request of the corporation' shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner 'not opposed to the best interests of the
corporation' as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any By-law, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
II-2
<PAGE>
<PAGE>
Chancery may summarily determine a corporation's obligations to advance
expenses (including attorneys' fees).
Article VII of the Registrant's By-laws provides as follows:
Section 6. (a) The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was an employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. In this
connection, the termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was an employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that an employee or agent of the corporation has
been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in subsections (a) and (b), or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of an employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit, or proceeding, or (ii) if such a quorum is not obtainable, by
independent legal counsel in a written opinion, or (iii) by independent
legal counsel in a written opinion if a majority of a quorum consisting of
directors who were not parties to such action, suit, or proceeding so
directs, or (iv) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an employee or
agent in defending any civil, criminal, administrative, or investigative
action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit, or proceeding upon receipt of
an undertaking by or on behalf of an employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
II-3
<PAGE>
<PAGE>
(f) The indemnification and advancement of expenses provided by or
granted pursuant to the provisions of this section shall not be deemed
exclusive of any other rights to which one seeking indemnification or
advancement of expenses may be entitled under any By-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this section.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
employee or agent and shall inure to the benefit of the heirs, executors,
and administrators of such person.
Article XI of the Company's Restated Certificate provides as follows:
(a) The Company shall indemnify and hold harmless, to the fullest
extent now or hereafter permitted by applicable 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), each director or officer (including each former
director or officer) of the Company who was or is made a party to or a
witness in or is threatened to be made a party to or a witness in, or is
otherwise involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter referred to as a 'Proceeding'), by reason of the fact that
such person is or was a director, officer, employee, or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter referred to as a 'Representative'),
whether the basis of such proceeding is alleged action or failure to take
action in an official capacity as a Representative or in any other capacity
while serving as a Representative, against any and all expenses (including
attorneys' fees and disbursements), liabilities, (including judgments,
fines, excise taxes and penalties imposed under or in connection with
obligations under the Employee Retirement Income Securities Act of 1974, as
amended), amounts paid in settlement, and amounts expended in seeking
indemnification granted to such person under applicable law, the By-laws or
any agreement with the Company, actually and reasonably incurred by such
persons in connection with such Proceeding.
(b) The Company shall pay expenses (including attorneys' fees and
disbursements) incurred by a director or officer (including each former
director or officer) of the Company in connection with the investigation,
defense, settlement or appeal of any Proceeding to which such person is a
party to or a witness in or is threatened to be a party to or a witness in,
or is otherwise involved in, regarding such person's service as a
Representative in advance of the final disposition of such Proceeding. The
expenses incurred by such director or officer in his capacity as a
Representative of the Company shall be paid by the Company in advance of
the final disposition of such Proceeding only upon receipt by the Company
of an undertaking by or on behalf of such person to repay all amounts
advanced if it shall be determined ultimately that such person is not
entitled to be indemnified under this Article XI or otherwise.
(c) The rights of indemnification and advancement of expenses provided
by this Article XI shall not be deemed exclusive of any other rights to
which any person seeking indemnification or advancement of expenses may
have or hereafter be entitled under any statute, provision of the Restated
Certificate of Incorporation or By-laws of the Company, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office or position, and shall continue as to a person who has
ceased to be a Representative of the Company and shall inure to the benefit
of the heirs,
II-4
<PAGE>
<PAGE>
executors and administrators of such person. The rights conferred in this
Article XI shall be contract rights.
(d) If any claim under this Article XI is not paid in full by the
Company within 30 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 such suit is not
frivolous or brought in bad faith, the claimant shall be entitled to be
also paid the expense of prosecuting such claims. It shall be a defense to
any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to
the Company) that the claimant has not met the standards of conduct that
make it permissible under applicable law for the Company to indemnify the
claimant for the amount claimed, but the burden of providing such defense
shall be on the Company. Neither the failure of the Company (including the
Board, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because the claimant has met
the applicable standard of conduct set forth in applicable law, nor an
actual determination by the Company (including the Board, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
(e) The Company may purchase and maintain insurance on behalf of any
Representative, employee or agent of the Company against any liability
asserted against or incurred by such person in any capacity, whether or not
the Company would have the power to indemnify such person against such
liability under the provisions of this Article XI.
(f) The Board, without approval of the stockholders, shall have the
power to borrow money on behalf of the Company, including the power to
pledge the assets of the Company, from time to time to discharge the
Company's obligations with respect to indemnification, the advancement and
reimbursement of expenses, and the purchase and maintenance of insurance
referred to in this Article XI.
(g) For purposes of this Article, references to the 'Company' shall
include, in addition to the resulting corporations, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its Representatives so that
any person who is or was a Representative of such constituent corporation
shall stand in the same position under this Article XI with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(h) The Board is authorized to enter into a contract with any
Representative, employee or agent of the Company providing for
indemnification rights equivalent to or, if the Board so determines,
greater than, those provided for in this Article XI.
(i) Any amendment, repeal or modification of any provision of this
Article XI by the stockholders or the directors of the Company shall not
adversely affect any right of protection of a Representative of the Company
under this Article XI existing at the time of such amendment, repeal or
modification.
(j) The Company may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Company to the fullest extent
of the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Company.
(k) A director of the Company shall not be personally liable to the
Company or its stockholders 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 stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for a stock repurchase which is
illegal under Section 174 of the General Corporation Law of the State of
Delaware or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the
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<PAGE>
further elimination or limitation of the liability of directors, then the
liability of a director of the Company, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph by the stockholders of the Company shall be
prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Company existing at the time of
such repeal or modification.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1.1* -- Form of Underwriting Agreement for the Senior Debt Securities and the Subordinated Debt Securities.
1.2* -- Form of Underwriting Agreement for the Preferred Stock and the Common Stock.
3.1 -- Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3(i) to the
Company's Form 10-Q for the Quarter ended March 31, 1994).
3.2 -- By-laws of the Company (incorporated by reference to Exhibit 3(ii) to the Company's Form 10-Q for the
Quarter ended March 31, 1994).
4.1(a) -- Form of Indenture relating to Senior Debt Securities (incorporated by reference to Exhibit 4(a) to
Registration Statement No. 33-58066, filed with the Commission on February 10, 1993).
4.1(b) -- Form of Indenture relating to Subordinated Debt Securities.
4.2(a) -- Form of Senior Debt Securities (included in Exhibit 4.1(a)).
4.2(b) -- Form of Subordinated Debt Securities (included in Exhibit 4.1(b)).
4.5 -- Rights Agreement dated as of March 2, 1995, between the Company and First Chicago Trust Company of New
York, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's Report on Form 8-K/A
filed with the Commission on March 3, 1995).
5 -- Opinion of Cravath, Swaine & Moore.
12 -- Statement re computation of ratios.
15 -- Letter re unaudited interim financial information.
23.1 -- Consent of Cravath, Swaine & Moore (included in Exhibit 5).
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of Arthur Andersen LLP.
23.4 -- Consent of KPMG Peat Marwick LLP.
24 -- Powers of Attorney (included on page II-8 as a part of the signature pages hereto).
25 -- Form T-1 Statement of Eligibility and Qualification of the Senior Trustee.
</TABLE>
- ------------
* To be filed
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(A) To include any prospectus required by Section 10(a)(3) of
the Securities Act unless the information required to be included in
such post-effective amendment is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement;
(B) 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 unless the information required
to be included in such post-effective amendment is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not
II-6
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<PAGE>
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the 'Calculation of Registration Fee' table in the
effective registration statement; and
(C) 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.
(ii) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(iii) 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the 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 Securities Act and will
be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby, undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the Trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of such Act.
II-7
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Greenwich, State of Connecticut, on December 20,
1995.
WITCO CORPORATION,
/s/ WILLIAM R. TOLLER
By: .................................
WILLIAM R. TOLLER
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
We, the undersigned officers and directors of WITCO CORPORATION, hereby
severally constitute and appoint William R. Toller, Michael D. Fullwood and
Dustan E. McCoy, and each of them (with full power to each of them to act
alone), our true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for us and in our stead, to execute in our name
and behalf any and all amendments (including post-effective amendments) to this
Registration Statement and all documents relating thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them full power and authority to do and perform each and
every act and thing necessary or advisable to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Witness our hands on the 20th day of December, 1995.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated on December 20, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
PRINCIPAL EXECUTIVE OFFICERS:
/s/ WILLIAM R. TOLLER Chairman of the Board, Chief Executive Officer and Director
.........................................
(WILLIAM R. TOLLER)
/s/ WILLIAM E. MAHONEY Vice Chairman, Chief Operating Officer and Director
.........................................
(WILLIAM E. MAHONEY)
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
/s/ MICHAEL D. FULLWOOD Executive Vice President and Chief Financial Officer
.........................................
(MICHAEL D. FULLWOOD)
DIRECTORS:
/s/ WILLIAM J. ASHE Director
.........................................
(WILLIAM J. ASHE)
/s/ SIMEON BRINBERG Director
.........................................
(SIMEON BRINBERG)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
/s/ WILLIAM G. BURNS Director
.........................................
(WILLIAM G. BURNS)
/s/ WILLIAM R. GRANT Director
.........................................
(WILLIAM R. GRANT)
/s/ RICHARD M. HAYDEN Director
.........................................
(RICHARD M. HAYDEN)
/s/ HARRY G. HOHN Director
.........................................
(HARRY G. HOHN)
/s/ L. JOHN POLITE, JR. Director
.........................................
(L. JOHN POLITE, JR.)
/s/ DAN J. SAMUEL Director
.........................................
(DAN J. SAMUEL)
/s/ BRUCE F. WESSON Director
.........................................
(BRUCE F. WESSON)
/s/ WILLIAM WISHNICK Director
.........................................
(WILLIAM WISHNICK)
</TABLE>
II-9
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EXHIBIT INDEX
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EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
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1.1* --Form of Underwriting Agreement for the Senior Debt Securities and the Subordinated
Debt Securities........................................................................
1.2* --Form of Underwriting Agreement for the Preferred Stock and the Common Stock............
3.1 --Restated Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3(i) to the Company's Form 10-Q for the Quarter ended March 31, 1994)..........
3.2 --By-laws of the Company (incorporated by reference to Exhibit 3(ii) to the Company's
Form 10-Q for the Quarter ended March 31, 1994)........................................
4.1(a) --Form of Indenture relating to Senior Debt Securities (incorporated by reference to
Exhibit 4(a) to Registration Statement No. 33-58066, filed with the Commission on
February 10, 1993).....................................................................
4.1(b) --Form of Indenture relating to Subordinated Debt Securities............................. 41
4.2(a) --Form of Senior Debt Securities (included in Exhibit 4.1(a))............................
4.2(b) --Form of Subordinated Debt Securities (included in Exhibit 4.1(b))......................
4.5 --Rights Agreement dated as of March 2, 1995, between the Company and First Chicago
Trust Company of New York, as Rights Agent (incorporated by reference to Exhibit 1 to
the Company's Report on Form 8-K/A filed with the Commission of March 3, 1995).........
5 --Opinion of Cravath, Swaine & Moore..................................................... 124
12 --Statement re computation of ratios..................................................... 126
15 --Letter re unaudited interim financial information...................................... 127
23.1 --Consent of Cravath, Swaine & Moore (included in Exhibit 5).............................
23.2 --Consent of Ernst & Young LLP........................................................... 128
23.3 --Consent of Arthur Andersen LLP......................................................... 129
23.4 --Consent of KPMG Peat Marwick LLP....................................................... 130
24 --Powers of Attorney (included on page II-8 as a part of the signature pages to the
Registration Statement)................................................................
25 --Form T-1 Statement of Eligibility and Qualification of the Senior Trustee.............. 131
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* To be filed
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EXHIBIT 4.1(b)
WITCO CORPORATION
to
,
Trustee
SUBORDINATED DEBT SECURITIES
FORM OF INDENTURE
Dated as of _______________
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Witco Corporation
Certain Sections of this Indenture relating to
Sections310 through 318, inclusive, of the Trust
Indenture Act of 1939:
Section 310 (a)(1).............................. 609
(a)(2).............................. 609
(a)(3).............................. Not Applicable
(a)(4).............................. Not Applicable
(b)................................. 608
.................................... 610
Section 311 (a).................................. 613
(b).................................. 613
Section 312 (a).................................. 701
...................................... 702(a)
(b)................................... 702(b)
(c).................................... 702(c)
Section 313 (a).................................... 703(a)
(b).................................... 703(a)
(c).................................... 703(a)
(d).................................... 703(b)
Section 314 (a).................................... 704
(a)(4)................................. 101
....................................... 1008
(b).................................. Not Applicable
(c)(1)............................... 102
(c)(2)............................... 102
(c)(3).............................. Not Applicable
(d)................................. Not Applicable
(e)................................. 102
Section 315 (a)................................. 601
(b)................................. 602
(c)................................. 601
(d)................................. 601
(e)................................. 514
Section 316 (a)................................. 101
(a)(1)(A)........................... 502
................................... 512
(a)(2)(B)........................... 513
(a)(2).............................. Not Applicable
(b)................................. 508
(c)................................. 104(c)
Section 317 (a)(1).............................. 503
(a)(2)............................. 504
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Section 318 (b)................................. 1003
(a)................................. 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions........................................................................... 1
SECTION 102. Compliance Certificates and Opinions.................................................. 11
SECTION 103. Form of Documents Delivered to Trustee................................................ 12
SECTION 104. Acts of Holders; Record Dates......................................................... 12
SECTION 105. Notices, Etc., to Trustee and Company................................................. 14
SECTION 106. Notice to Holders; Waiver............................................................. 15
SECTION 107. Conflict with Trust Indenture Act..................................................... 15
SECTION 108. Effect of Headings and Table of Contents.............................................. 15
SECTION 109. Successors and Assigns................................................................ 15
SECTION 110. Separability Clause................................................................... 16
SECTION 111. Benefits of Indenture................................................................. 16
SECTION 112. Governing Law......................................................................... 16
SECTION 113. Legal Holidays........................................................................ 16
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally....................................................................... 16
SECTION 202. Form of Face of Security.............................................................. 17
SECTION 203. Form of Reverse of Security........................................................... 19
SECTION 204. Form of Trustee's Certificate of Authentication....................................... 24
SECTION 205. Form of Legend for Global Security.................................................... 25
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ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.................................................. 25
SECTION 302. Denominations......................................................................... 29
SECTION 303. Execution, Authentication, Delivery and Dating........................................ 29
SECTION 304. Temporary Securities.................................................................. 31
SECTION 305. Registration; Registration of Transfer and Exchange................................... 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...................................... 34
SECTION 307. Payment of Interest; Interest Rights Preserved........................................ 35
SECTION 308. Persons Deemed Owners................................................................. 36
SECTION 309. Cancellation.......................................................................... 37
SECTION 310. Computation of Interest............................................................... 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....................... 42
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............. 45
SECTION 509. Restoration of Rights and Remedies.................................................... 46
SECTION 510. Rights and Remedies Cumulative........................................................ 46
SECTION 511. Delay or Omission Not Waiver.......................................................... 46
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SECTION 512. Control by Holders.................................................................... 46
SECTION 513. Waiver of Past Defaults............................................................... 47
SECTION 514. Undertaking for Costs................................................................. 47
SECTION 515. Waiver of Stay or Extension Laws...................................................... 47
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities................................................... 48
SECTION 602. Notice of Defaults.................................................................... 48
SECTION 603. Certain Rights of Trustee............................................................. 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities................................ 50
SECTION 605. May Hold Securities................................................................... 50
SECTION 606. Money Held in Trust................................................................... 50
SECTION 607. Compensation and Reimbursement........................................................ 50
SECTION 608. Disqualification; Conflicting Interests............................................... 51
SECTION 609. Corporate Trustee Required; Eligibility............................................... 51
SECTION 610. Resignation and Removal; Appointment of Successor..................................... 52
SECTION 611. Acceptance of Appointment by Successor................................................ 53
SECTION 612. Merger, Conversion, Consolidation or Succession to Business........................... 55
SECTION 613. Preferential Collection of Claims Against Company..................................... 55
SECTION 614. Appointment of Authenticating Agent................................................... 55
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders............................. 58
SECTION 702. Preservation of Information; Communications to Holders................................ 58
SECTION 703. Reports by Trustee.................................................................... 59
SECTION 704. Reports by Company.................................................................... 59
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.................................. 60
SECTION 802. Successor Substituted................................................................. 61
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.................................... 61
SECTION 902. Supplemental Indentures with Consent of Holders....................................... 63
SECTION 903. Execution of Supplemental Indentures.................................................. 64
SECTION 904. Effect of Supplemental Indentures..................................................... 64
SECTION 905. Conformity with Trust Indenture Act................................................... 65
SECTION 906. Reference in Securities to Supplemental Indentures.................................... 65
SECTION 907. Subordination Unimpaired.............................................................. 65
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest............................................ 65
SECTION 1002. Maintenance of Office or Agency....................................................... 66
SECTION 1003. Money for Securities Payments to Be Held in Trust..................................... 66
SECTION 1004. Statement by Officers as to Default................................................... 68
SECTION 1005. Existence............................................................................. 68
SECTION 1006. Maintenance of Properties............................................................. 68
SECTION 1007. Payment of Taxes and Other Claims..................................................... 69
SECTION 1008. Limitation on Mortgages............................................................... 69
SECTION 1009. Limitation on Sale and Leaseback Transactions......................................... 73
SECTION 1010. Exempted Indebtedness................................................................. 74
SECTION 1011. Waiver of Certain Covenants........................................................... 74
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.............................................................. 75
SECTION 1102. Election to Redeem; Notice to Trustee................................................. 75
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..................................... 75
SECTION 1104. Notice of Redemption.................................................................. 76
SECTION 1105. Deposit of Redemption Price........................................................... 77
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............................................. 79
ARTICLE THIRTEEN
Subordination of Securities
SECTION 1301. Securities Subordinate to Senior Indebtedness......................................... 79
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc........................................ 79
SECTION 1303. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.................. 81
SECTION 1304. No Payment When Senior Indebtedness in Default........................................ 82
SECTION 1305. Payment Permitted if No Default....................................................... 82
SECTION 1306. Subrogation to Rights of Holders of Senior Indebtedness............................... 83
SECTION 1307. Provisions Solely to Define Relative Rights........................................... 83
SECTION 1308. Trustee to Effectuate Subordination................................................... 84
SECTION 1309. No Waiver of Subordination Provisions................................................. 84
SECTION 1310. Notice to Trustee..................................................................... 85
SECTION 1311. Reliance on Judicial Order or Certificate of Liquidating Agent........................ 86
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SECTION 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness.............................. 86
SECTION 1313. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's
Rights.............................................................................. 86
SECTION 1314. Article Applicable to Paying Agents................................................... 87
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance.......................................................................... 87
SECTION 1402. Defeasance and Discharge.............................................................. 87
SECTION 1403. Covenant Defeasance................................................................... 88
SECTION 1404. Conditions to Defeasance or Covenant Defeasance....................................... 89
SECTION 1405. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous....................................................................... 92
SECTION 1406. Reinstatement......................................................................... 93
TESTIMONIUM........................................................................................... 94
SIGNATURES AND SEALS.................................................................................. 94
ACKNOWLEDGMENTS....................................................................................... 95
</TABLE>
<PAGE>
<PAGE>
[FORM OF SUBORDINATED INDENTURE]
INDENTURE, dated as of ________________ between WITCO
CORPORATION, a corporation duly organized and existing under the Laws
of the State of Delaware (herein called the "Company"), having its
principal offices at One American Lane, Greenwich, Connecticut 06831,
and ____________, a bank duly organized and existing under the Laws of
the State of ____________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated 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:
(i) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(ii) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by
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reference therein, have the meanings assigned to them
therein;
(iii) 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
(iv) 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 or such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the term "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" shall mean, as to any particular lease
relating to a sale and leaseback transaction of a Principal Property under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent (discounted from the respective
due dates thereof at the interest rate from time to time being used by the
Company to determine its liability in respect of capitalized leases) required to
be paid by such Person under such lease during the remaining term thereof. The
net amount of rent required to be paid under any such lease for any such period
shall be the total amount of the rent payable by the lessee with respect to such
period, but may exclude amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, utilities, operating and labor costs
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount of rent shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
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"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 or any directors or
officers of the Company to whom such board of directors shall have delegated its
authority to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, 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
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean total
consolidated assets of the Company and its Subsidiaries, less the following:
(1) current liabilities of the Company and its
Subsidiaries;
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(2) all depreciation and valuation reserves and all other
reserves (except (a) reserves for contingencies which have not been
allocated to any particular purpose and (b) deferred credits, including
deferred federal and foreign income taxes and deferred investment tax
credits) of the Company and its Subsidiaries;
(3) the net book amount of all intangible assets of the
Company and its Subsidiaries, including, but without limitation, the
unamortized portions of such items as good will, trademarks, trade
names, patents and debt discount and expense less debt premium; and
(4) appropriate adjustments on account of minority interests
of other Persons holding stock in Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Defeasable Covenant" has the meaning specified in
Section 1403.
"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 Global
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 Exchange Act; 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.
"Exchange Act" means the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"GAAP" means generally accepted accounting
principles applied on a consistent basis.
"Global Security" means a Security bearing the
legend prescribed in Section 205 (or such legend as may be
- 4 -
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specified as contemplated by Section 301 for such Securities) evidencing all or
part of a series of Securities, authenticated and delivered to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indebtedness" means (i) all items of indebtedness or
liability (except capital and surplus) which in accordance with generally
accepted accounting principles would be included in determining total
liabilities as shown on the liability side of a balance sheet as at the date as
of which indebtedness is to be determined, (ii) indebtedness secured by any
Mortgage existing on property owned subject to such Mortgage, whether or not the
indebtedness secured thereby shall have been assumed, and (iii) guarantees,
endorsements (other than for purposes of collection) and other contingent
obligations in respect of, or to purchase or otherwise acquire, indebtedness of
others, unless the amount thereof is included in indebtedness under the
preceding clauses (i) or (ii).
"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, any such supplemental indenture
and the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.
The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"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.
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"Mortgage" means and includes any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, Chief Financial
Officer or Controller and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"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 canceled 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 this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which defeasance has been
effected pursuant to Section 1402; 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
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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 any request, demand,
authorization, direction, notice, consent or waiver hereunder, (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, and (iii) 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 or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon 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,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
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"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.
"Principal Property" means any manufacturing facility located
within the United States of America owned or leased by the Company or any
Subsidiary except any such manufacturing facility which the Board of Directors
by resolution declares is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety.
"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 officer in the Corporate Trust Office of the Trustee 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.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if
any) and interest on (a) all indebtedness of the Company for money borrowed
other than the Securities, and any other indebtedness of the Company represented
by a note, bond, debenture or other similar evidence of indebtedness (including
indebtedness of others guaranteed by the
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Company), in each case whether outstanding on the date of this indenture or
thereafter created, incurred or assumed and (b) amendments, renewals,
extensions, modifications and refundings of any such indebtedness, unless in any
case in the instrument creating or evidencing any such indebtedness or pursuant
to which the same is outstanding it is provided that such indebtedness is not
superior in right of payment to the Securities. For the purposes of this
definition, "indebtedness for money borrowed", when used with respect to the
Company means (a) any obligation of, or any obligation guaranteed by, the
Company for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (b) any deferred payment
obligation of, or any such obligation guaranteed by, the Company for the payment
of the purchase price of property or assets evidenced by a note or similar
instrument, and (c) any obligation of, or any such obligation guaranteed by, the
Company for the payment of rent or other amounts under a lease of property or
assets which obligation is required to be classified and accounted for as a
capitalized lease on the balance sheet of the Company under generally accepted
accounting principles, in the case of each of (a), (b) and (c) whether such
indebtedness or obligation is outstanding on the date of execution of the
Subordinated Indenture or thereafter created, incurred or assumed.
"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 a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Sub-sidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"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,
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"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.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president (but shall not include any assistant vice
president), whether or not designated by a number or a word or words added
before or after the title "vice president".
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, shall mean the yield to maturity, if any, set forth in
the prospectus supplement relating thereto, which shall be equal to the yield to
maturity, if any, set forth on the face of such Security.
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
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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.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an 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,
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to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes related 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.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(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 Act,
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
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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.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
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,
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, marked
"Attention: General Counsel", 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 any notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled to receive such notice, at
his address as it appears in the Security
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Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall 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.
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
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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 or Stated 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 or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE 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 as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 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, all
as determined by the
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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.]
WITCO CORPORATION
No. ________________
$--------------
WITCO CORPORATION, a corporation duly organized and existing
under the laws of the State 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, semiannually 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
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
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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] [insert other currency,
if applicable] 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].
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.
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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.
Dated:
WITCO CORPORATION,
by
----------------------------
Attest:
- ----------------------------
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 ___________ (herein called the "Indenture"), between the
Company and ____________, 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 Indebtedness 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 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 the following Redemption Prices
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(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,
Year Redemption
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 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 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,
Year Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the of the Sinking Fund
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
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record at the close of business on the relevant Record Date
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 [if applicable,
insert-- 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-- This Security is not
subject to redemption prior to maturity.]
[If applicable, insert-- The Indenture contains provisions for
defeasance at any time of [(a)] [the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
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 Indebtedness, 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 by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
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[If the Security is not an Original Issue Discount Security,
insert-- The principal of this Security may not be declared due and payable upon
the occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company 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-- The principal of this Security may not be declared due and payable upon
the occurrence of an Event of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or reorganization of the
Company. If an Event of Default with respect to Securities of this series
relating to certain events involving the bankruptcy, insolvency or
reorganization of the Company 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 [if
applicable, insert-- (i)] of the amount of principal so declared due and payable
[if applicable, insert-- 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.]
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 66-2/3% in principal amount of
the Securities at the time Outstanding of all series to be affected (voting as a
single class). 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
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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 registerable 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 or
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.
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SECTION 204. Form of Trustee's Certificate of
Authentication. The Trustee's certificates 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.
_____________________________, as
Trustee,
by
------------------------
Authorized Office
SECTION 205. Form of Legend for Global Security. Unless
otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of,
this Security shall be a Global Security subject to the foregoing,
except in such limited circumstances."
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 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'
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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 which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 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
the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;
(6) the place or places where the principal of and
any premium and interest on Securities of the series
shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, 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
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
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(9) if other than denominations of $l,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 by reference
to an index or formula, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) 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;
(14) the application, if any, of either or both of
Section 1402 and Section 1403 to the Securities of the
series;
(15) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to,
and registered and exchanged for Securities registered in the name of,
a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered;
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(16) if other than as specified in Section 501, the
events of default applicable with respect to the
Securities of the series;
(17) if other than as specified in Section 502, the events of
default the occurrence of which would permit the declaration of the
acceleration of maturity pursuant to Section 502;
(18) any other covenant or warranty included for the benefit of
Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit of
Securities of such series, or any combination of such covenants,
warranties or provisions;
(19) if other than as specified in Article Thirteen, the
subordination provisions applicable with respect to the Securities of
the series; and
(20) any other term of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(e)).
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.
If any of the terms of a series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such 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
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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 President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
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 such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 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 the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and
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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 are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an Authorized Officer, 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, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination,
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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 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 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, 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.
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Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder 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 and except as otherwise
specified or contemplated by Section 301, no Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906 and 1107 for
Securities registered in the name of, and no transfer of a Global Security of
any series may be registered to, any Person other than the Depositary for such
Security or its nominee, unless (1) such Depositary (A) notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (B) ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so exchangeable and the transfer thereof
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so registerable, or (3) there shall have occurred and be continuing an Event of
Default, or an event which with notice or lapse of time or both would become an
Event of Default, with respect to the Securities evidenced by such Global
Security. Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clause (1), (2) or (3) of the
preceding sentence or such other conditions as may be specified as contemplated
by Section 301 for such series, such Global Security may be exchanged for
Securities registered in the names of, and the transfer of such Global Security
may be registered to, such Persons (including Persons other than the Depositary
with respect to such series and its nominees) as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 205 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
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 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.
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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.
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 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
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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.
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 and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
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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.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 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 (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 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)
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or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 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 and the last
paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money. Subject to the
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. Money deposited pursuant
to this Section not in violation of this Indenture shall not be subject to
claims of the holders of Senior Indebtedness under Article Thirteen.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any particular series, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be occasioned by
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the provisions of Article Thirteen or be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the due and punctual payment of any installment
of interest upon any of the Securities of that series as and when the
same shall become due and payable and continuance of such default for a
period of 30 days; or
(b) default in the due and punctual payment of the principal
of (or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable at its Maturity; or
(c) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company set forth in the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms of Securities of
any series other than that series, or those which have been included in
this Indenture for the benefit of Securities of any series other than
that series) continued for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Securities of that series at the time
Outstanding, a written notice specifying such failure and requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) 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
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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 in
effect for a period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as being bankrupt or insolvent, or the consent by the
Company to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar Law,
or the consent by the Company to the filing of any such petition or to
the appointment of a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company, or of
any substantial part of its properties, or the making by the Company of
an assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that
series) or under 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 by the Company (including this
Indenture) with a principal amount then outstanding, individually or in
the aggregate, in excess of $10,000,000, whether such indebtedness now
exists or shall hereafter be
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created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled within a period of 10 days after there shall have
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
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company to
cause such indebtedness to be discharged or such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions
of Sections 601 and 602, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer in
the Corporate Trust Department of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(h) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. In case one or more of the Events of Default specified in Section
501(e)or 501(f) shall have occurred and be continuing with respect to any
particular series of Securities, then and in each and every such case, unless
the principal of all of the Securities of that series shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal or, in the case of Original Issue Discount
Securities, such amount of principal as may be provided for in such Securities,
of all the Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be
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immediately due and payable, anything in this Indenture or in the Securities of
that series contained to the contrary notwithstanding. This provision, however,
is subject to the condition that if, at any time after such principal or such
amount of principal, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all Securities of that series and the principal of
(and premium, if any, on) any and all Securities of that series which shall have
become due otherwise than by acceleration (with interest on overdue installments
of interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal (and premium, if any) at the rate of
interest prescribed therefor by such Securities, to the date of such payment or
deposit) and the expenses of the Trustee, including the reasonable fees of its
counsel, and any and all defaults under this Indenture with respect to the
Securities of the series, other than the nonpayment of principal of (and
premium, if any) and accrued interest on the Securities of that series which
shall have become due by acceleration shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding, by written notice to the Company and
to the Trustee, may waive all defaults and rescind and annul such declaration
and its consequences; but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon.
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
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(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 written 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 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
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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, the Trustee may vote on behalf of the Holders 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. Subject to
Article Thirteen, 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; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
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SECTION 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 during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 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
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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, 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:
(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.
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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 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.
SECTION 515. Waiver of Stay or Extension Laws. The Company
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covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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
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character specified in Section 501(d) 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, except that in the case of any
such Officers' Certificate which by any provision hereof is specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not it conforms to the requirements of
this Indenture;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon, except that in the case
of any such Opinion of Counsel which by any provision hereof is specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not it conforms to the requirements of
this Indenture;
(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
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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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys 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.
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 the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
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.
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 with the Company.
SECTION 607. Compensation and Reimbursement. The
Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) 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
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(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
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 subject to supervision or
examination by Federal or State authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, 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 no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 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 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.
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(d) If at any time:
(i) 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
(ii) 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
(iii) the Trustee shall become incapable of acting or shall be
adjudged as being bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 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
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.
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(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 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 of 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 (i) 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, (ii) 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 (iii) 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
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duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (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 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
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of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall 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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------,
As Trustee
By:
------------------------,
As Authenticating Agent
By:
---------------------------
Authorized Officer
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 then June 30 and December 31 in
each year, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the preceding June 15 or
December 15, and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 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, if it is acting as such.
SECTION 702. Preservation of Information; Communica-
tions 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
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Holders received by the Trustee in its capacity as Security Registrar, if it is
acting as such. 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. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12-month
period, such report shall cover the 12-month period ending May 15 and shall be
transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will 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
Exchange Act 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
into any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and the
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Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted. Upon any consolidation of
the Company with, or merger of the Company 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
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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
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 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:
(a) 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
(b) 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
(c) to add any additional Events of Default; or
(d) 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
(e) 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
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
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(h) to establish the terms upon which the Securities of one or
more series may be convertible into, or exchangeable for, shares of
common stock or preferred stock or other securities of the Company; or
(i) 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; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
pursuant to this clause (j) shall not 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 66-2/3% in principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture (voting as a single class), 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 each 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
modify the provisions of this Indenture with respect to the
subordination of the Securities of any series in a manner adverse to
the Holders, 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
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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 1011, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1011, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(i).
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.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered
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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.
SECTION 907. Subordination Unimpaired. No provision
in any supplemental indenture that affects the superior position
of the holders of Senior Indebtedness shall be effective against
holders of Senior Indebtedness.
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 or cause to be paid the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. Interest on Securities shall be
payable without presentment of such Securities, and only to the registered
Holders thereof determined as provided in Section 307. The Company shall have
the right to require a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present at the office or
agency of the Company at which such payment is made a certificate, in such form
as the Company may from time to time prescribe, to enable the Company to
determine its duties and liabilities with respect to any taxes, assessments or
governmental charges which it may be required to deduct or withhold therefrom
under any present or future law of the United States of America or of any state,
county, municipality or taxing or withholding authority therein, and the Company
shall be entitled to determine its duties and liabilities with respect to such
deduction or withholding on the basis of information contained in such
certificate or, if no such certificate shall be so presented, on the basis of
any presumption created by any such law, and shall be entitled to act in
accordance with such determination.
SECTION 1002. Maintenance of Office or Agency. So long as any
Securities remain outstanding, 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
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such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 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 any Paying
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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 Borough of Manhattan, 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, 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.
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 in the judgment of the Company the preservation thereof is
no longer desirable in the conduct of the business of the Company and the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties. The Company will
cause all 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
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improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgement 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 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.
SECTION 1008. Limitation on Mortgages. The Company will not
create or assume and will not permit any Subsidiary other than a Foreign
Subsidiary to create or assume any Mortgage of or upon any of its or their
assets, real or personal, now owned or hereafter acquired, or of or upon any
income of profits therefrom, without making effective provision, and the Company
covenants that in any such case it will make or cause to be made effective
provision, whereby the Securities shall be secured by such Mortgage equally and
ratably with any and all other obligations and Indebtedness thereby secured, so
long as any such other obligations and Indebtedness shall be so secured;
provided that the foregoing covenant shall not apply to any of the following:
(1) The creation of any Mortgage on any property hereafter
acquired by the Company or any Subsidiary, contemporaneously with such
acquisition or within 120 days thereafter, to secure or provide for the
payment of any part of the purchase price of such property, or the
assumption by the Company or any Subsidiary of any Mortgage upon any
property hereafter acquired by the Company or any Subsidiary existing
at the time of such acquisition, provided that the amount of any
Indebtedness secured by any such Mortgage created or assumed shall not
exceed the cost to the Company or Subsidiary, as the case may be, of
the property covered by such Mortgage (including, in the case of the
assumption of such Mortgage, the amount of the Indebtedness secured
thereby), or the fair value (as determined by the Board of Directors)
of such property at the time the Mortgage is created or assumed,
whichever shall be less.
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(2) Any Mortgage on any property acquired by the Company or
any Subsidiary existing at the time of such acquisition and any
Mortgage executed by any corporation acquired by the Company or any
Subsidiary and exclusively securing any Indebtedness existing at the
time of such acquisition, and, in each case, not assumed by the Company
or any Subsidiary.
(3) Any Mortgage executed by any Subsidiary and exclusively
securing any Indebtedness incurred by such Subsidiary to the Company or
to one or more other Subsidiaries.
(4) The creation of one or more Mortgages for the sole purpose
of renewing or refunding in whole or in part one or more Mortgages
referred to in clauses (1), (2), or (3) of this Section or one or more
of the Mortgages existing at the date of this Indenture on any assets
of the Company or a Subsidiary; provided that the aggregate amount of
Indebtedness secured by any such renewal or refunding Mortgage shall
not exceed the aggregate amount of Indebtedness secured by the Mortgage
or Mortgages being renewed or refunded at the time of such renewal or
refunding and that such renewal or refunding Mortgage shall and
improvements thereon be limited to (A) all or any part of the same
property (and improvements thereon) which secured the Mortgage renewed
or refunded or (B) in the case of a simultaneous renewal or refunding
of one or more Mortgages on contiguous property (and improvements
thereon), all or any part of the same contiguous property which secured
the Mortgage renewed or refunded; and provided further that in the case
of any renewal or refunding of a Mortgage of the type referred to in
subsection (3) or this subsection neither the Company nor any
Subsidiary (other than the Subsidiary whose property is subject
thereto) shall assume any Indebtedness secured by such renewal or
refunding Mortgage.
(5) Liens of carriers, warehousemen, mechanics and materialmen
incurred in the ordinary course of business for sums not yet due or
being contested in good faith.
(6) Liens in favor of the United States of America, or any
State or subdivision thereof, or any other country or subdivision
thereof where the Company or any Subsidiary may transact any of its
business, or any governmental agency, to the extent required in the
ordinary course of business.
(7) Liens for taxes or assessments or governmental charges or
levies, if such taxes, assessments, governmental charges or levies
shall not at the time be due and payable, or if the same thereafter can
be paid without penalty, or if the same are being contested in good
faith by appropriate proceedings.
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(8) Pledges or deposits to secure payment of worker's
compensation or insurance premiums, or in connection with tenders, bids
or contracts (other than contracts for the payment of money) or leases
or deposits to secure surety or appeal bonds, pledges or deposits in
connection with contracts made with or at the request of the United
States of America or any State or any agency of the United States or
any such State, and pledges or deposits for purposes similar to any of
the above in the ordinary course of business.
(9) Liens created by or resulting from any litigation or legal
or administrative proceeding which at the time is currently being
contested in good faith by appropriate proceedings; leases made or
existing on property acquired in the ordinary course of business; and
landlords' liens on property held under lease.
Notwithstanding the foregoing provisions of this Section, the
Company or any Subsidiary may grant such easements for ingress and egress over
property owned by the Company or such Subsidiary in favor of the United States
or any State, or any department, agency, instrumentality or political
subdivision of either, as is necessary to permit the attachment or removal of
any equipment or other property designed primarily for the purpose of pollution
control and with respect to which the Company or any Subsidiary may have granted
a lien or transferred title to such government or governmental agency pursuant
to the foregoing provisions of this Section or of Section 1009 in connection
with the financing of such equipment or other property; provided that any such
lien on equipment or other property designed primarily for the purpose of
pollution control shall not apply to any other property owned by the Company or
any Subsidiary and any such transfer of title to equipment or other property
designed primarily for the purpose of pollution control shall not include
transfer of title to any other property owned by the Company or any Subsidiary.
The sale or other transfer of oil, gas or other minerals in
place for a period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money for such
minerals, or the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment shall not be deemed to
create, for purposes of this Section, any Mortgage upon the assets of the
Company of any Subsidiary.
If any time the Company or any Subsidiary shall create or
assume any Mortgage not excepted from this Section as above provided, and not
exempted under Section 1010, the Company will promptly deliver to the Trustee
(1) an Officers' Certificate stating that the covenant of the Company contained
in the first paragraph of this Section has been complied with, and (2) an
Opinion of Counsel stating that, in the opinion of such counsel, such covenant
has been complied with and that any instruments
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executed by the Company in performance of such covenant comply
with the requirements thereof.
In the event that the Company shall hereafter secure the
Securities of any series equally and ratably with any other obligation or
Indebtedness pursuant to the provisions of this Section, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities of such series so
secured equally and ratably with such other obligation or indebtedness. The
Trustee shall be entitled to receive, and subject to the provisions of Section
601 hereof, shall be fully protected in relying upon, an Opinion of Counsel as
conclusive evidence that any supplemental indenture or action taken equally and
ratably to secure the Debentures complies with the provisions of this Section.
Subject to the provisions of Section 1009, nothing herein
contained shall be deemed to prevent the Company or any Subsidiary from selling
any property with the intention of taking back a lease of such property.
The covenant contained in this Section 1008 is subject to the
provision for exempted Indebtedness in Section 1010.
SECTION 1009. Limitation on Sale and Leaseback Transactions.
The Company will not, nor will it permit any Subsidiary to enter into any
arrangement with any person providing for the leasing by the Company or any
Subsidiary of any Principal Property (except for temporary leases of not more
than three years and except for leases between the Company and a Subsidiary or
between Subsidiaries), which property has been or is to be sold or transferred
by the Company or such Subsidiary to such person unless either
(a) the Company or such Subsidiary would be entitled pursuant
to Section 1008 to incur Indebtedness secured by a Mortgage on the
property to be leased equal in amount to the Attributable Debt with
respect to such sale and leaseback transaction without equally and
ratably securing the Securities; or
(b) the Company shall apply an amount at least equal to the
net proceeds of such sale or transfer or the fair value as determined
by the Board of Directors of such property, whichever is greater, to
the redemption or retirement, within 120 days of the effective date of
any such arrangement of Indebtedness of the Company which is not
subordinate or junior in right of payment to the Securities; provided,
however, that in lieu of applying all or any part of such amount to
such redemption or retirement of such Indebtedness, the Company may,
within 75 days after such sale voluntarily retire Indebtedness,
excluding redemption and retirement of Indebtedness pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment
at
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maturity, and thereby reduce the amount of cash which the Company shall
be required to apply to the redemption or retirement of Indebtedness
under this Section by an amount equal to the aggregate of the principal
amount of the Indebtedness, as the case may be, so redeemed or retired.
The covenant contained in this Section is subject to the
provision for exempted Indebtedness in Section 1010.
SECTION 1010. Exempted Indebtedness. Notwithstanding the
provisions contained in Sections 1008 and 1009, the Company and its Subsidiaries
may, without securing the Securities of any series, secure obligations or
Indebtedness which would otherwise be subject to the limitation of Section 1008
or may, without redeeming or retiring Indebtedness, enter into sale and
leaseback transactions which would otherwise be subject to the limitation of
Section 1009, or there may be a combination of such transactions, if after
giving effect to any such security arrangements and any such sale and leaseback
transactions the sum of (1) the aggregate amount of all such obligations and
Indebtedness then outstanding which would otherwise be or have been prohibited
by the limitations of Section 1008 without securing the Securities pursuant to
such Section, and (2) Attributable Debt relating to all then existing leases
under such sale and leaseback transactions which would otherwise be or have been
prohibited by the provisions of Section 1009 without securing the Securities of
any series or redeeming or retiring Indebtedness pursuant to such Section, does
not at any such time exceed 10% of Consolidated Net Tangible Assets.
SECTION 1011. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 1008 to 1009, inclusive, with respect to the Securities of
any series if before the time for such compliance the Holders of at least
66-2/3% 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.
ARTICLE ELEVEN
Redemption of Securities
------------------------
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, 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 in
accordance with this Article (unless all of the Securities of such series and of
a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
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.
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.
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All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and accrued interest, if any;
(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 and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any; 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 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 sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 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, required as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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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 Security Registrar so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Security Registrar shall authenticate and deliver 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 (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) 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
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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 90 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 Security Registrar any Securities to
be so delivered. Not less than 60 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 1105, 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security of any series,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities of such series and the payment of the principal of
(and premium, if any) and interest on each of the Securities of such series are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
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 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 the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities of any series are entitled
to receive any payment on account of principal of (or premium, if any) or
interest on
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the Securities of such series, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect of the
Securities of any series in any such case, proceeding, dissolution, liquidation
or other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the holder of any Security of any series shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution 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 Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, 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 sale, conveyance,
transfer or lease of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshalling of assets and liabilities of the
Company 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 sale, conveyance, transfer or lease such properties and assets substantially
as an entirety, as the case may be, shall, as a part of such consolidation,
merger, sale, conveyance, transfer or lease, comply with the conditions set
forth in Article Eight.
SECTION 1303. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities. In the event that any Securities of any series are
declared due and payable before their Stated Maturity, then and in such event
the holders of Senior Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all
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Senior Indebtedness, or provision shall be made for such payment in cash, before
the Holders of the Securities of such series are entitled to receive any payment
of the principal of, premium, if any, or interest on the Securities of such
series or on account of the purchase or other acquisition of Securities of such
series; provided, however, that, if as specified as contemplated by Section 301,
Article Twelve is applicable to any series of Securities, nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article Twelve by delivering and crediting pursuant to Section 1202
Securities of such series which have been acquired (upon redemption or
otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security of any
series prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1302 would be applicable.
SECTION 1304. No Payment When Senior Indebtedness in Default.
(a) 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 Indebtedness beyond
any applicable grace period with respect thereto, or in the event that any event
of default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to declare such Senior Indebtedness 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 (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment, or event of default, then no payment
shall be made by the Company on account of principal of (or premium, if any) or
interest on the Securities of any series or on account of the purchase or other
acquisition of Securities of any series; provided, however, that, if as
specified as contemplated by Section 301, Article Twelve is applicable to any
series of Securities, nothing in this Section shall prevent the satisfaction of
any sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities of such series which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security of any
series prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time
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of such payment, have been made known to the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1302 would be applicable.
SECTION 1305. Payment Permitted if No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities of any series shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1302 or under the
conditions described in Section 1303 or 1304, from making payments at any time
of principal of (and premium, if any) or interest on the Securities of any
series, or (b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of (and premium, if
any) or interest on the Securities of any series or the retention of such
payment by the Holder, if, subject to Section 1310, at the time of such
application by the Trustee, it did not have knowledge that such payment would
have been prohibited by the provisions of this Article.
SECTION 1306. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities of a series shall be subrogated (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to indebtedness of the Company to substantially the same extent
as the Securities are subordinated and is entitled to like rights of
subrogation) to the extent of the payments or distributions made to the holders
of such Senior Indebtedness pursuant to the provisions of this Article to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities of such series shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities of a series or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
of a series or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities of such
series, be deemed to be a payment or distribution by the Company to or on
account of the Senior indebtedness.
SECTION 1307. 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 of the Securities of a series on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
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contained in this Article or elsewhere in this Indenture or in the Securities of
any series is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities of any series, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities of a series the principal
of (and premium, if any) and interest on the Securities of such series 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 of a series and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security of
any series 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 Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1308. Trustee To Effectuate Subordination. Each Holder
of a Security of any series 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 1309. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness 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
failure to act, in good faith, by any such 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 Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities of any series, without incurring responsibility to the Holders of the
Securities of any series 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 Indebtedness, 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 Indebtedness, or otherwise amend or
supplement in any manner Senior indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
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SECTION 1310. 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 of any series. 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 of a series, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor or
representative thereof; 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 (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 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 Indebtedness (or a trustee
therefor or representative thereof) to establish that such notice has been given
by a holder of Senior Indebtedness (or a trustee therefor or representative
thereof). 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 Indebtedness 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 Indebtedness
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 1311. Reliance on Judicial Order or Certificate of
Liquidation 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 of any series shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other
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Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities of such series, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness 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 1312. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
of any series or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
SECTION 1313. Rights of Trustee as Holder of Senior
Indebtedness; 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 Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, 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 1314. Article Applicable to Paying Agents. In case at
any time any Payment 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 1313
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Payment Agent.
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
----------------------------------
SECTION 1401. 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 1402 or (b) covenant defeasance of the Securities of a series under
Section 1403, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article Fourteen, 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
- 75 -
<PAGE>
<PAGE>
have either Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Fourteen.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture, including the provisions of Article Thirteen
hereof, 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: (i) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1405 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, (ii) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003 and such obligations as shall be ancillary thereto, (iii) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder and (iv) this Article Fourteen. Subject to compliance with
this Article Fourteen, the Company may exercise its option under this Section
1402 notwithstanding the prior exercise of its option under Section 1403 with
respect to the Securities of such series. Following a defeasance, payment of the
Securities of such series may not be accelerated because of an Event of Default.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section and after the date the conditions
set forth below are satisfied, (i) the Company shall be released from its
obligations under Sections 1005 through 1010, inclusive, and Section 801 and
under any additional or substitute covenant established with respect to the
Securities of any series pursuant to Section 301 if the Securities of such
series have been determined pursuant to Section 301 to be subject to this
provision (with Sections 1005 through 1010, inclusive, and Section 801 and any
such additional or substitute covenant referred to herein as a "Defeasible
Covenant"), and (ii) the occurrence of an event specified in Sections 501(c),
501(d) (with respect to such Defeasible Covenant), 501(g) and 501(h) shall not
be deemed to be or to result in an Event of Default with respect to the
Outstanding Securities of such series (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of
- 76 -
<PAGE>
<PAGE>
any term, condition or limitation set forth in any such Defeasible Covenant
whether directly or indirectly by reason of any reference elsewhere herein to
any such Defeasible Covenant or by reason of any reference in any such
Defeasible Covenant to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected thereby.
Following a covenant defeasance, payment of the Securities of such series may
not be accelerated because of an Event of Default specified in Section 501(e) or
Section 501(f) or by reference to Section 501(d) and such Defeasible Covenant.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either Section
1402 or Section 1403 to the Outstanding Securities of 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 Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest and any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the due dates thereof. 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 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 depository 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
- 77 -
<PAGE>
<PAGE>
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
depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository 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(e) and (f)
are concerned, at any time during the period ending on the 123rd day
after the date of such deposit (it being understood that the condition
in this clause (B) 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.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act to be delisted.
(6) In the case of an election under Section 1402, 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.
(7) In the case of an election under Section 1403,
the Company shall have delivered to the Trustee an Opinion
- 78 -
<PAGE>
<PAGE>
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.
(8) 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.
(9) At the time of such deposit: (A) no default in the payment
of all or a portion of principal of (or premium, if any) or interest on
any Senior Indebtedness shalt have occurred and be continuing, and no
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable and (B) no
other event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting (after notice or the lapse
of time, or both) the holders of such Senior Indebtedness (or a trustee
on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have
become due and payable, or, in the case of either clause (A) or clause
(B) above, each such default or Event of Default shall have been cured
or waived or shall have ceased to exist.
(10) The Company shall have paid, or provided for the payment
of, the fees and expenses of the Trustee payable pursuant to Section
607.
(11) 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 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
SECTION 1405. 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 1405, the "Trustee")
pursuant to Section 1404 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
- 79 -
<PAGE>
<PAGE>
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 1404 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 1404
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 1406. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 1405 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 Fourteen until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal of (and premium, if any) or interest on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or the Paying Agent.
- 80 -
<PAGE>
<PAGE>
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
---------------------
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duty executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
WITCO CORPORATION,
by
-----------------------
Name:
Title:
Attest:
- -------------------------
________________________,
by
-----------------------
Name:
Title:
Attest:
- -------------------------
- 81 -
<PAGE>
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ____________, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is __________________ of WITCO CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
__________________________
[Notarial Seal] Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ____________, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is __________________ of ___________________________ , a bank
described in and which executed the foregoing instrument; that he knows the
seal of said association; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said association, and that he signed his name thereto by like authority.
__________________________
[Notarial Seal] Notary Public
- 82 -
<PAGE>
<PAGE>
EXHIBIT 5
[Letterhead of]
CRAVATH, SWAINE & MOORE
December 20, 1995
Witco Corporation
Registration Statement on Form S-3
Dear Sirs:
We have acted as counsel to you (the "Company") in connection
with the preparation and filing of the Registration Statement on Form S-3 (the
"Registration Statement") filed by the Company on the date hereof with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to $500,000,000 aggregate initial offering
price of senior and subordinated unsecured debt securities ("Debt Securities"),
Preferred Stock, without par value, of the Company ("Preferred Stock"), and
Common Stock, $5.00 par value per share, of the Company ("Common Stock"), for
issuance from time to time pursuant to Rule 415 under the Securities Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such
documents, records and other instruments as we have deemed necessary or
appropriate for this opinion.
Based upon the foregoing, we are of opinion as follows:
(a) The Debt Securities, when duly authorized, executed,
authenticated and delivered against payment therefor, will be validly
issued and will constitute binding obligations of the Company in
accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization,
<PAGE>
<PAGE>
moratorium or other laws affecting creditors' rights generally from
time to time in effect.
(b) The shares of Preferred Stock, when duly authorized and
issued for consideration determined by the Board of Directors of the
Company, will be validly issued, fully paid and non-assessable.
(c) The shares of Common Stock, when duly authorized and
issued for consideration having a value not less than the par value
thereof, will be validly issued, fully paid and nonassessable.
We are admitted to practice in the State of New York, and we
express no opinion as to any matters governed by any laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States of America.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our Firm under the heading
"Legal Matters" in the Preliminary Prospectus constituting a part of the
Registration Statement. This opinion is being furnished to you solely for your
benefit in connection with the Registration Statement. This opinion is not to be
used, circulated, quoted or otherwise referred to for any other purpose except
as herein provided.
Very truly yours,
/s/ Cravath, Swaine & Moore
Witco Corporation
One American Lane
Greenwich, CT 06831
<PAGE>
<PAGE>
EXHIBIT 12
Witco Corporation
Calculation of Earnings to Fixed Charges Ratio
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months
ended
For the years ended December 31, Sept. 30,
1990 1991 1992 1993 1994 1995
-------- -------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Pre tax earnings from continuing
operations $ 93,448 $ 72,160 $ 58,518 $ 41,297 $145,162 $184,105
Less:
Undistributed (income) loss
of unconsolidated affiliates (785) (372) (285) (546) (362) 158
Add:
Amortization of capitalized
interest 1,299 1,326 1,317 1,279 1,278 1,004
Interest expense 16,400 16,027 16,448 34,984 29,674 29,674
Rent expense factor 4,826 4,943 4,744 5,855 6,794 5,122
Minority interest 2,783 1,760 1,977 2,604 3,951 2,810
-------- -------- -------- -------- ------- --------
Earnings available for fixed
charges $117,971 $ 95,844 $ 82,719 $ 85,473 $186,497 $222,873
======== ======== ======== ======== ======== ========
Interest expense $ 16,400 $ 16,027 $ 16,488 $ 34,984 $ 29,674 $ 29,674
Capitalized interest 1,807 1,164 851 1,923 2,214 948
Rent expense factor 4,826 4,943 4,744 5,855 6,794 5,122
-------- ------ ---- ------ ---- ------
Fixed charges $ 23,033 $ 22,134 $ 22,083 $ 42,762 $ 38,682 $ 35,744
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges 5.12 4.33 3.75 2.00 4.82 6.24
======== ======== ======== ======== ======== ========
</TABLE>
<PAGE>
<PAGE>
EXHIBIT 15
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
December 20, 1995
The Board of Directors
Witco Corporation
We are aware of the incorporation by reference in the Registration
Statement on Form S-3 of Witco Corporation for the registration of common stock,
preferred stock and debt securities of our report dated November 10, 1995
relating to the unaudited condensed consolidated financial statements of Witco
Corporation and Subsidiary Companies which are included in its Form 10-Q for the
quarter ended September 30, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report is
not a part of the registration statement prepared or certified by accountants
within the meaning of Section 7 or 11 of the Securities Act of 1933.
ERNST & YOUNG LLP
Stamford, Connecticut
<PAGE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement on Form S-3 and related Prospectus of Witco
Corporation for the registration of common stock, preferred stock and debt
securities and to the incorporation by reference therein of our report dated
January 26, 1995 (except for Note 16, as to which the date is December 20,
1995), with respect to the consolidated financial statements and schedule of
Witco Corporation and Subsidiary Companies for the year ended December 31,
1994 included in Form 8-K dated December 20, 1995 filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Stamford, Connecticut
December 20, 1995
<PAGE>
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-3 (the
"Registration Statement") of Witco Corporation (the "Company") filed with the
Securities and Exchange Commission (the "Commission") on the date hereof of our
report dated March 17, 1995 included in the Company's Current Report on Form
8-K/A filed with the Commission on the date hereof. We consent to the reference
to our Firm under the heading "Experts" in the Registration Statement. It should
be noted that we have not audited any financial statements of OSi Specialties
Holding Company subsequent to December 31, 1994.
ARTHUR ANDERSEN LLP
December 20, 1995
<PAGE>
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-3 (the "Registration Statement") and related Prospectus (the
"Prospectus") of Witco Corporation filed with the Securities and Exchange
Commission on the date hereof of our report dated August 27, 1993, with respect
to the combined statements of income and cash flows of the Worldwide Silicone
Business of Union Carbide Corporation (the "Predecessor Company") for the
six-month period ended June 30, 1993, and the year ended December 31, 1992, and
the related financial schedule II, which report appears in the 1994 Annual
Report on Form 10-K of OSi Specialties Holding Company and we consent to the
reference to our Firm under the heading "Experts" in the Registration Statement
and the Prospectus.
As discussed in our report, in 1992 the Predecessor Company adopted
the provisions of Statement of Financial Accounting Standards (SFAS) No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions", and
SFAS No. 109, "Accounting for Income Taxes".
KPMG PEAT MARWICK LLP
December 20, 1995
<PAGE>
<PAGE>
EXHIBIT 25
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
------------------
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
----------------
WITCO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-1870000
(I.R.S. Employer Identification No.)
One American Lane
Greenwich, Connecticut
(Address of principal executive offices)
06831
(Zip Code)
----------------------------------
Senior Debt Securities
(Title of the indenture securities)
------------------------------------------------------------------------------
<PAGE>
<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 the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect.
See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit
T-1 (Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable).
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
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.
- -------------------
*The Exhibits thus designated are incorporated herein by reference. Following
the description of such Exhibits is a reference to the copy of the Exhibit
heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
-------------------
<PAGE>
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
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 New York, and the
State of New York, on the 20th day December, 1995
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ Sheik Wiltshire
______________________________________
Sheik Wiltshire, Second Vice President
-----------------
<PAGE>
<PAGE>
EXHIBIT 7
to
EXHIBIT 25
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on September 30,
1995, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
Thousands
of Dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............................................................ $ 5,081,000
Interest-bearing balances..................................................................................... 5,957,000
Held to maturity securities....................................................................................... 1,678,000
Available-for-sale securities..................................................................................... 5,303,000
Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold............................................................................................ 1,806,000
Securities purchased under agreements to resell............................................................... 23,000
Loans and lease financing receivable:
Loans and leases, net of unearned income........................................................ $55,682,000
LESS: Allowance for loan and lease losses....................................................... 1,112,000
LESS: Allocated transfer risk reserve........................................................... 0
-----------
Loans and leases, net of unearned income, allowance, and reserve.............................................. 54,570,000
Assets held in trading accounts................................................................................... 12,551,000
Premises and fixed assets (including capitalized leases).......................................................... 1,755,000
Other real estate owned........................................................................................... 400,000
Investments in unconsolidated subsidiaries and associated companies............................................... 30,000
Customers' liability to this bank on acceptances outstanding...................................................... 1,091,000
Intangible assets................................................................................................. 1,344,000
Other assets...................................................................................................... 6,322,000
-----------
TOTAL ASSETS...................................................................................................... $97,911,000
-----------
-----------
LIABILITIES
Deposits:
In domestic offices........................................................................................... $31,007,000
Noninterest-bearing......................................................................... $12,166,000
Interest-bearing............................................................................ 18,841,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs................................................. 36,015,000
Noninterest-bearing......................................................................... $ 3,258,000
Interest-bearing............................................................................ 32,757,000
-----------
Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................................................................... 1,673,000
Securities sold under agreements to repurchase................................................................ 233,000
Demand notes issued to the U.S. Treasury.......................................................................... 25,000
Trading liabilities............................................................................................... 9,105,000
Other borrowed money:
With original maturity of one year or less.................................................................... 2,783,000
With original maturity of more than one year.................................................................. 395,000
Mortgage indebtedness and obligations under capitalized leases.................................................... 40,000
Bank's liability on acceptances executed and outstanding.......................................................... 1,100,000
Subordinated notes and debentures................................................................................. 1,960,000
Other liabilities................................................................................................. 5,747,000
-----------
TOTAL LIABILITIES................................................................................................. 90,083,000
-----------
Limited-life preferred stock and related surplus.................................................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................................... 0
Common stock...................................................................................................... 921,000
Surplus........................................................................................................... 5,244,000
Undivided profits and capital reserves............................................................................ 1,695,000
Net unrealized holding gains (losses) on available-for-sale securities ........................................... (43,000)
Cumulative foreign currency translation adjustments............................................................... 11,000
-----------
TOTAL EQUITY CAPITAL.............................................................................................. 7,828,000
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL............................................... $97,911,000
-----------
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</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We 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 and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
<PAGE>
