Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-1444512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4000 Metropolitan Drive
Orange, California
92668-3510
(714) 385-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_______________
MILAN A. SAWDEI
Secretary
4000 Metropolitan Drive
Orange, California 92668-3510
(714) 385-4255
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
Please send copies of all communications to:
Richard M. Sandler, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement,
as determined in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [x]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of each class maximum aggregate Amount of
of securities to be Amount to be offering price offering registration
registered (1) registered per unit price (2) fee (2)
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<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock,
Class A Common
Stock (including preferred
share purchase rights),
Debt Securities Warrants,
Preferred Stock Warrants
and Class A Common Stock
Warrants. . . . . . . . . (3) (3) (3)$400,000,000 $137,932
____________________________________________________________________________________________
Capital Securities(5). . (5) (4) (4) None
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<FN>
(1) This Registration Statement also covers delayed delivery contracts
which may be issued by the Registrant and under which the counterparty
may be required to purchase Debt Securities, Preferred Stock, Class A
Common Stock and/or Warrants. In addition, any securities registered
hereunder may be sold separately, together or as units with other
securities registered hereunder. Preferred share purchase rights are
currently attached to, and trade with, the Registrant's Class A Common
Stock and entitle the holder thereof to purchase one-one hundredth of a
share of the Registrant's Series A Junior Preferred Stock. If Class A
Common Stock is issued, these rights will be issued for no additional
consideration.
(2) Estimated solely for the purpose of calculating the registration fee
and exclusive of accrued interest, if any. The amount of the filing
fee, calculated in accordance with Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended, equals one
twenty-ninth of one percent of the maximum offering price of all of the
securities listed above.
(3) Not applicable pursuant to General Instruction II.D of Form S-3 under
the Securities Act of 1933.
(4) No separate consideration will be received for Capital Securities that
are issued in exchange for, or upon conversion of, the Debt Securities
or Preferred Stock.
(5) Capital Securities may consist of such Class A Common Stock, Preferred
Stock or other securities as may be issued in exchange for, or upon
conversion of, the Debt Securities or Preferred Stock issued under this
Registration Statement.
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
_______________________________________________________________________________
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY __, 1996
PROSPECTUS
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BERGEN BRUNSWIG CORPORATION
Securities
Bergen Brunswig Corporation (the "Company") may from time to time offer in
one or more series (i) its unsecured senior or subordinated debt securities (the
"Debt Securities"), (ii) shares of its preferred stock, no par value (the
"Preferred Stock"), (iii) Depositary Shares (as defined below), (iv) shares of
its Class A Common Stock, par value $1.50 per share (the "Class A Common
Stock"), (v) warrants to purchase Debt Securities (the "Debt Securities
Warrants"), (vi) warrants to purchase Preferred Stock (the "Preferred Stock
Warrants"), (vii) warrants to purchase Depositary Shares (the "Depositary Shares
Warrants") and (viii) warrants to purchase Class A Common Stock (the "Class A
Common Stock Warrants" and, together with the Debt Securities Warrants, the
Preferred Stock Warrants and the Depositary Shares Warrants, the "Warrants"),
with an aggregate initial public offering price of up to $400,000,000, or the
equivalent thereof in one or more foreign currencies or composite currencies, on
terms to be determined at the time of sale. The Debt Securities, Preferred
Stock, Depository Shares, Class A Common Stock and Warrants are collectively
referred to herein as the "Offered Securities". The Offered Securities may be
offered, separately or as part of units consisting of one or more such
securities ("Units"), in separate series, in amounts, at prices and on terms to
be determined at the time of sale and to be set forth in one or more supplements
to this Prospectus (each a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be described in a Prospectus Supplement. The
applicable Prospectus Supplement will describe, among other things and, where
applicable, the following: (i) in the case of Debt Securities, the specific
designation, priority, aggregate principal amount, denominations, maturity,
premium, rate (which may be fixed or variable) and required time of payment of
any interest, terms for redemption at the option of the Company, terms of any
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion or exchange into other securities, provisions regarding original
issue discount securities and the initial public offering price; (ii) in the
case of Preferred Stock, the specific title and stated value, number of shares,
any dividend, liquidation, redemption, conversion, exchange, voting and other
preferences and rights, and the initial public offering price; (iii) in the case
of Class A Common Stock, the number of shares and the initial public offering
price; and (iv) in the case of Warrants, the duration, offering price, exercise
price, exercise dates, detachability and terms of the securities for which they
are exercisable. In addition, the Prospectus Supplement will describe whether
interests in the Preferred Stock will be represented by depositary shares (the
"Depositary Shares") evidenced by depositary receipts. Units may be issued in
amounts, at prices, on terms and containing such conditions, covenants and other
provisions, and consisting of such Offered Securities and other securities, as
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will be set forth in the applicable Prospectus Supplement. The applicable
Prospectus Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to the Offered
Securities and any listing on a securities exchange of the Offered Securities
covered by such Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, to or through underwriters or dealers, or
through a combination of such methods. If any agents, underwriters or dealers
are involved in the sale of any of the Offered Securities, their names, and any
applicable fee, commission, purchase price or discount arrangements with them,
as well as the estimated net proceeds to the Company from such sale, will be set
forth, or will be calculable from the information set forth, in a Prospectus
Supplement. See "Plan of Distribution" for a description of possible
indemnification arrangements for any such agents, underwriters or dealers.
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 , 1996
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IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE (IN
THE CASE OF CLASS A COMMON STOCK OR OTHER OFFERED SECURITIES LISTED THEREON), IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Registration Statement") (of which
this Prospectus is a part) under the Securities Act of 1993, as amended (the
"Securities Act"), with respect to the Offered Securities. This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to
the contents of any contract or other document are not necessarily complete, and
in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference and such exhibits. For
further information regarding the Company and the Offered Securities, reference
is hereby made to the Registration Statement and such exhibits and schedules
which may be obtained from the Commission at its principal office in Washington,
D.C. upon payment of the fees prescribed by the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Registration Statement, the exhibits and the schedules forming
a part thereof and the reports, proxy statements and other information filed by
the Company with the Commission in accordance with the Exchange Act can be
inspected and copied at the Commission's Public Reference Section, 450 Fifth
Street, N.W.,Room 1024, Washington, D.C. 20549, and at the following regional
offices of the Commission: Seven World Trade Center, Suite 1300, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at
prescribed rates. In addition, the Company's Class A Common Stock and certain
of its debt securities are listed on the New York Stock Exchange and similar
information concerning the Company can be inspected and copied at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
_______________
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("dollars", "U.S.
dollars" or "U.S. $").
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended September 30, 1995;
(2) the description of the Company's Preferred Share Purchase Rights
included in the Company's Registration Statement on Form 8-A dated
February 14, 1994; and
(3) the description of the Company's Class A Common Stock as set forth in
the Company's Registration Statement on Form 8-A dated October 20, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents) will be provided without charge to
each person, including any beneficial owner, to whom this Prospectus is
delivered, upon written or oral request. Copies of this Prospectus, as amended
or supplemented from time to time, and any other documents (or parts of
documents) that constitute part of this Prospectus under Section 10(a) of the
Securities Act will also be provided without charge to each such person, upon
written or oral request. Requests should be directed to Bergen Brunswig
Corporation, 4000 Metropolitan Drive, Orange, California 92668-3510, Attn: Milan
A. Sawdei, Secretary; telephone number: (714) 385-4255.
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THE COMPANY
Bergen Brunswig Corporation (the "Company"), through its subsidiaries, is a
diversified drug and health care product distribution organization and, as such,
is the nation's largest supplier of pharmaceuticals to hospitals and managed
care facilities, one of the nation's largest suppliers of pharmaceuticals and
health care products to chain and independent pharmacies, and a supplier of
medical and surgical products to hospitals, clinics and alternate site health
care facilities.
The Company is incorporated in New Jersey and maintains its principal
executive offices at 4000 Metropolitan Drive, Orange, California 92668-3510;
telephone (714) 385-4000.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include, without limitation, the
repayment of indebtedness of the Company or of any of its subsidiaries, possible
acquisitions, capital expenditures and working capital needs. Pending such
application, the net proceeds may be temporarily invested in short term
securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods indicated. The Company has not had any shares
of preferred stock outstanding during such periods. Accordingly, the Company's
ratios of earnings to fixed charges and earnings to combined fixed charges and
preferred dividends were identical for each of the periods presented.
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Year Ended
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September 30, August 31,
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1995 1994(1) 1993 1992(2) 1991
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<S> <C> <C> <C> <C> <C>
Earnings to fixed charges 3.8x 4.2x 2.5x 5.1x 5.5x
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<FN>
(1) On October 1, 1993, the Company changed its fiscal year-end from August 31
to September 30. For the month ended September 30, 1993, the Company's
consolidated ratio of earnings to fixed charges was 2.2x.
(2) All historical financial information regarding the Company set forth in this
Prospectus or incorporated herein by reference has been restated to
eliminate the results of operations of Commtron Corporation ("Commtron"),
formerly an 81% owned subsidiary of the Company. The Company sold its
interest in Commtron to an unaffiliated third party in June 1992. The
ratios set forth in the table do not give effect to any acquisitions made
after September 30, 1995.
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income taxes plus
fixed charges. "Fixed charges" consist of interest expense, amortization of
debt issuance costs and the portion of rentals for real and personal properties
deemed to be representative of the interest factor.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior securities of the Company
("Senior Debt Securities") or subordinated securities of the Company
("Subordinated Debt Securities"). The Senior Debt Securities (other than
LYONs(TM)*, as hereinafter defined) will be issued under a senior indenture,
dated as of January 1, 1996 (the "Senior Indenture"), between the Company and
Chemical Trust Company of California, as trustee (in such capacity, the "Senior
Trustee"). The Subordinated Debt Securities (other than LYONs) will be issued
under a subordinated indenture, dated as of January 1, 1996 (the "Subordinated
Indenture"), between the Company and Chemical Trust Company of California, as
trustee (in such capacity, the "Subordinated Trustee"). The Company may offer
Liquid Yield Option(TM)* Notes ("LYONs"), which may be either Senior Debt
Securities or Subordinated Debt Securities. LYONs will not be issued under the
Senior Indenture or the Subordinated Indenture, but rather will be issued under
a separate indenture (the "LYONs Indenture") to be entered into when and if
LYONS are issued pursuant to this Prospectus. The Senior Indenture, the
Subordinated Indenture and the LYONs Indenture are collectively referred to
herein as the "Indentures".
A copy of each of the Indentures is filed as an exhibit to the Registration
Statement. Certain provisions of the Indentures are referred to and summarized
below. The summaries do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
applicable Indenture. Section references under "Description of Debt Securities"
are references to the following: the first reference is to both the Senior
Indenture and the Subordinated Indenture; if there is a second reference, the
second reference is to the LYONs Indenture. Section references under "Senior
Debt Securities" and "Subordinated Debt Securities" below are references to the
Senior Indenture and Subordinated Indenture, respectively.
General
The aggregate principal amount of Debt Securities which can be issued under
the Senior Indenture and the Subordinated Indenture is unlimited (Section 3.01).
The Debt Securities to which this Prospectus relates will be issued from time to
time in such amounts as will result in aggregate proceeds, taking into account
all such issuances, of up to $400,000,000. The Debt Securities may be issued in
one or more series with the same or various maturities and may be sold at par,
at an original issue discount or at a premium. Debt Securities sold at an
original issue discount may bear no interest or may bear interest at a rate
which is below market rates. The Debt Securities will be unsecured obligations
of the Company issued in fully registered form without coupons, in bearer form
with coupons or in both such forms. The Senior Debt Securities will rank as to
priority of payment with all other outstanding unsubordinated and unsecured
indebtedness of the Company, while the indebtedness represented by the
Subordinated Debt Securities will be subordinated as described under
"Subordinated Debt Securities".
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[FN]
* TM - Trademark of Merrill Lynch & Co., Inc.
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Reference is made to the relevant Prospectus Supplement for the following
terms to the extent that they are applicable to any particular series of Debt
Securities: (a) the designation and denomination of, and any limit upon the
aggregate principal amount of, such Debt Securities; (b) whether such Debt
Securities are Senior Debt Securities or Subordinated Debt Securities; (c) the
percentage of their principal amount at which such Debt Securities will be
issued and, in the case of Debt Securities issued with original issue discount,
the principal amount thereof payable upon acceleration of the maturity thereof;
(d) the date or dates on which such Debt Securities will mature or the manner in
which such dates are determined; (e) the rate or rates (which may be fixed or
floating) per annum at which such Debt Securities will bear interest, if any, or
the method of determining the same and the date or dates from which such
interest, if any, will accrue; (f) the dates on which such interest, if any,
will be payable, the dates on which payment of such interest, if any, will
commence and the record dates for any such interest payment dates; (g) whether
any additional amounts will be payable to holders of such Debt Securities; (h)
the terms of any redemption provisions at the option of the Company or any
repayment provisions at the option of the holder or upon the occurrence of a
specified event; (i) any sinking fund or analogous provisions; (j) whether such
Debt Securities will be convertible or exchangeable for other securities and, if
so, the terms of any such conversion or exchange and the terms of such other
securities; (k) whether such Debt Securities are to be registered securities,
bearer securities or both, are to be issuable with or without coupons, the terms
upon which bearer securities may be exchanged for registered securities and, in
the case of bearer securities, the date as of which such bearer securities shall
be dated (if not the date of original issuance of the first security of like
tenor and term); (l) whether such Debt Securities are to be offered in the form
of a global security and, if so, the identity of the depositary and global
exchange agent, whether such global form is temporary or permanent, the
circumstances under which any temporary global Debt Security will be exchanged
for definitive global Debt Securities and any applicable exchange date; (m)
federal income tax consequences; (n) the currency or currencies or currency unit
or units of denomination; (o) the currency or currencies or currency unit or
units of payment of principal of (and premium, if any) and interest, if any, on
such Debt Securities if other than dollars and the time and manner of
determining any exchange rate between the currency or currencies of denomination
and that or those in which payment is to be made; (p) any index, currency
exchange rate, commodity or derivative instrument price, or other publicly
available data used to determine the amount of payments of principal of (and
premium, if any) and interest, if any, on such Debt Securities; (q) the person
to whom any interest on any such registered Debt Security shall be payable, if
other than the person in whose name such registered security (or one or more
predecessor securities) is registered at the close of business on a regular
record date, and the manner in which, or person to whom, any interest on any
bearer security will be payable, if other than upon presentation and surrender
of the coupons appertaining thereto as they mature; (r) any deletions from,
modifications of or additions to the Events of Default with respect to such Debt
Securities; (s) the material restrictive covenants of the Company, if any; (t)
the applicability of the defeasance provisions of the Indentures; (u) the place
or places where the principal of and any premium and interest on such Debt
Securities are payable; (v) the identity of the Security Registrar and Paying
Agent for such Debt Securities; and (w) any other terms of such Debt Securities.
Additional provisions of an Indenture, such as reset and extension provisions,
may be made applicable to the Offered Securities, as described in the applicable
Prospectus Supplement. For purposes of this Prospectus, any reference to the
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payment of principal (or premium, if any) or interest, if any, on any Debt
Securities will be deemed to include mention of the payment of any additional
amounts required by the terms of such Debt Securities.
The Debt Securities are obligations exclusively of the Company. The Company
is a holding company. Its principal assets are its direct or indirect ownership
of the capital stock of its subsidiaries, including Bergen Brunswig Drug
Company, cash, marketable securities and certain real estate. Because the
operations of the Company are currently conducted through subsidiaries, the cash
flow and the consequent ability to service debt of the Company, including the
Debt Securities, are substantially dependent upon the earnings of its
subsidiaries and the distribution of those earnings to the Company or upon loans
or other payments of funds by those subsidiaries to the Company. The
subsidiaries are separate and distinct legal entities and, except to the extent,
if any, described in a Prospectus Supplement pertaining to particular Offered
Securities, will have no obligation, contingent or otherwise, to pay any amounts
due pursuant to the Debt Securities or to make any funds available therefor,
whether by dividends, loans or other payments. In addition, the payment of
dividends and the making of loans and advances to the Company by its
subsidiaries may be subject to statutory or contractual restrictions, may be
contingent upon the earnings of those subsidiaries and are subject to various
business considerations.
The Debt Securities will be effectively subordinated to all indebtedness and
other liabilities, including trade payables, of the Company's subsidiaries. Any
right of the Company to receive assets of any of its subsidiaries upon their
liquidation or reorganization (and the consequent right of the holders of the
Debt Securities to participate in those assets) will be effectively subordinated
to the claims of that subsidiary's creditors (including trade creditors), except
to the extent that the Company is itself recognized as a nonsubordinated
creditor of such subsidiary, in which case the claims of the Company would still
be subordinate to any security interests in the assets of such subsidiary and
any indebtedness of such subsidiary senior to that held by the Company.
The Indentures do not contain any covenants or other provisions designed to
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company or any of its subsidiaries.
Reference is made to the Prospectus Supplement relating to the Debt Securities
offered thereby for information with respect to any deletions from,
modifications of, or additions to, the Events of Default or covenants that may
be included in the terms of such series of Debt Securities, including any
addition of a covenant or other provision providing event risk or similar
protection.
Conversion Rights
Certain Debt Securities may be convertible into other securities of the
Company (the "Convertible Debt Securities"). The holders of such Convertible
Debt Securities of a specified series may be entitled (subject to prior
redemption, repayment or repurchase, if applicable), if so provided in the
instruments creating or evidencing such Debt Securities and described in the
applicable Prospectus Supplement, to convert any Convertible Debt Securities of
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such series (in denominations set forth in the instruments creating or
evidencing such Debt Securities and described in the applicable Prospectus
Supplement) into another series of Debt Securities, Debt Securities Warrants,
Preferred Stock, Preferred Stock Warrants, Class A Common Stock or Class A
Common Stock Warrants, as the case may be (the foregoing securities into which
the Convertible Debt Securities may be converted are collectively referred to
herein as "Conversion Securities"), at the conversion price set forth in the
instruments creating or evidencing such Debt Securities and described in the
applicable Prospectus Supplement, subject to adjustment as described therein.
The relevant conversion provisions for each series of Convertible Debt
Securities will be described in the applicable Prospectus Supplement.
The Company is not required to issue fractional shares of Preferred Stock or
Class A Common Stock upon conversion of Convertible Debt Securities that are
convertible into Preferred Stock or Class A Common Stock, respectively, and, in
lieu thereof, will pay a cash adjustment, in the case of Convertible Debt
Securities convertible into Preferred Stock, based upon the liquidation
preference of such series of Preferred Stock unless otherwise specified in the
Prospectus Supplement, and in the case of Class A Common Stock, based upon the
market value of the Class A Common Stock. In the case of Convertible Debt
Securities convertible into securities other than Preferred Stock or Class A
Common Stock, such adjustment will be based on such method as is described in
the applicable Prospectus Supplement.
Except as described below or in the applicable Prospectus Supplement, no
adjustment will be made upon conversion of any Convertible Debt Securities for
interest accrued thereon or for dividends on any Conversion Securities issued.
Convertible Debt Securities surrendered for conversion during the period from
the close of business on any regular record date next preceding any interest
payment date to the opening of business on such interest payment date (except
Convertible Debt Securities called for redemption) must be accompanied by
payment of an amount equal to the interest thereon payable on such interest
payment date. In the case of any Convertible Debt Security which has been
converted after any regular record date but on or before the next interest
payment date (except Convertible Debt Securities called for redemption within
such period), the interest payable on such interest payment date shall be paid
notwithstanding such conversion, and such interest shall be paid to the holder
of such Convertible Debt Security on such regular record date. Except as
described above, no interest on converted Debt Securities will be payable by the
Company on any interest payment date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion.
If the conversion price for a series of Convertible Debt Securities that are
convertible into Class A Common Stock, Preferred Stock or another security is
subject to adjustment upon the occurrence of certain events, the formulas for
such adjustment will be described in the applicable Prospectus Supplement.
Conversion price adjustments or omissions in making such adjustments may, under
certain circumstances, be deemed to be distributions that could be taxable as
dividends under the Internal Revenue Code.
Mergers and Sales of Assets by the Company
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The Company may not consolidate with or merge into any other person or
convey, transfer or lease all or substantially all of its assets to any other
person, unless, among other things, (i) the resulting, surviving or transferee
person (if other than the Company) is organized and existing under the laws of
the United States, any state thereof or the District of Columbia and such person
expressly assumes all obligations of the Company under the Debt Securities and
the Indentures, and (ii) the Company or such successor person shall not
immediately thereafter be in default under the Indentures (Section 8.01)(Section
5.01). Upon the assumption of the Company's obligations by such a person in
such circumstances, subject to certain exceptions, the Company will be
discharged from all of its obligations under the Debt Securities and the
Indentures (Section 8.02) (Section 5.01).
Amendment and Waiver
Other than amendments not adverse to holders of the Debt Securities,
amendments of the Indentures or the Debt Securities may be made only with the
consent of the holders of a majority in aggregate principal amount of the Debt
Securities of each series affected. Waivers of compliance with any provision of
the Debt Securities or the Indentures with respect to any series of Debt
Securities may be made only with the consent of the holders of a majority in
aggregate principal amount of the Debt Securities of that series. The consent
of all holders of affected Debt Securities will be required to (a) change or, in
the case of the LYONs, extend, the maturity thereof, (b) reduce the principal
amount thereof, (c) reduce the rate of interest thereon or (d) impair the right
to institute suit for the payment of principal thereof or interest thereon
(Section 9.02)(Section 9.02). The holders of a majority in aggregate principal
amount of Debt Securities affected may waive any past default under the
applicable Indenture and its consequences, except a default (1) in the payment
of the principal of or interest on such Debt Securities, or (2) in respect of a
provision which cannot be waived or amended without the consent of all holders
of Debt Securities affected thereby and, additionally with respect to the LYONs,
a default under the conversion provisions of the LYONs Indenture (Sections 5.13
and 9.02)(Sections 6.04 and 9.02).
Denominations, Form, Exchange, Registration and Transfer
Debt Securities of a series may be issuable solely as registered securities,
solely as bearer securities or both as registered securities and as bearer
securities. Debt Securities of a series may be issuable in global form. See
"Description of Debt Securities -- Global Securities" below. Unless otherwise
indicated in the applicable Prospectus Supplement, if bearer securities are
offered, such securities (except those in temporary or permanent global form)
will have interest coupons attached.
Registered securities of any series will be exchangeable for other
registered securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both registered securities and bearer
securities, at the option of the holder, but subject to applicable laws, upon
request confirmed in writing, and subject to the terms of the applicable
Indenture, bearer securities (with all matured coupons, except as provided
below, and all matured coupons in default) of such series will be exchangeable
into registered securities of the same series of any authorized denominations
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and of a like aggregate principal amount, tenor and terms. Unless otherwise
specified in the applicable Prospectus Supplement, bearer securities surrendered
in exchange for registered securities of the same series between the close of
business on a regular record date or a special record date and the relevant date
for a payment of interest shall be surrendered without the coupon relating to
such date for payment of interest, and such interest will not be payable in
respect of the registered security issued in exchange for such bearer
securities, but will be payable only to the holder of such coupon when due in
accordance with the terms of the applicable Indenture. Unless otherwise
specified in the applicable Prospectus Supplement, bearer securities will not
otherwise be issued in exchange for registered securities. In connection with
its original issuance, no bearer security shall be mailed or otherwise delivered
to any location in the United States and, unless otherwise specified in the
applicable Prospectus Supplement, a bearer security may be delivered in
connection with its original issuance only if the person entitled to receive
such bearer security furnishes written certification in the form required by the
applicable Indenture.
Federal tax laws and regulations contain substantial restrictions regarding
the offer, sale, resale and delivery of bearer securities. In the event that
the Company should offer bearer securities pursuant to this Prospectus, such
restrictions will be described in the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities may be presented for exchange as provided above, and registered
securities may be presented for registration of transfer (duly endorsed or
accompanied by a satisfactory written instrument of transfer), at the office of
the Security Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to such series of Debt Securities, without
service charge and upon payment of any taxes and other governmental charges
(Section 3.05)(Section 2.06). Unless otherwise indicated in the applicable
Prospectus Supplement, the Company will not be required (i) to issue, register
the transfer of or exchange Debt Securities of any particular series to be
redeemed or exchanged for a period of 15 days preceding the first publication of
the relevant notice of redemption or, if registered securities are outstanding
and there is no publication, the mailing of the relevant notice of redemption or
exchange, (ii) to register the transfer of or exchange any registered security
so selected for redemption in whole or in part, except the unredeemed portion of
any registered security being redeemed or exchanged in part, or (iii) to
exchange any bearer security so selected for redemption except that such a
bearer security may be exchanged for a registered security of that series of
like tenor and terms, provided that such registered security shall be
simultaneously surrendered for redemption. (Section 3.05)(Section 2.06).
Global Securities
The Debt Securities may be issued in whole or in part in the form of one or
more global securities (each, a "Global Security") and deposited with a
depositary (the "Depositary"), or a nominee thereof, identified in the
applicable Prospectus Supplement. The specific terms of the depositary
arrangement with respect to any portion of a series of Debt Securities to be
represented by a Global Security will be described in the applicable Prospectus
Supplement. The Company currently expects that the following provisions will
apply to depositary arrangements.
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Debt Securities issued as Global Securities may be issued in whole or in
part in the form of one or more registered Global Securities registered in the
name of the Depositary or a nominee thereof (each, a "Registered Global
Security"). So long as the Depositary, or its nominee, is the registered owner
of a Registered Global Security, the Depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Registered Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement
and except as otherwise provided in the applicable Indenture, owners of
beneficial interests in the Debt Securities represented by such Registered
Global Security will not (a) be entitled to have such Debt Securities registered
in their names, (b) receive or be entitled to receive physical delivery of
certificates representing such Debt Securities in definitive form, (c) be
considered to be the owners or holders thereof under such Indenture or (d) have
any rights under such Indenture with respect to such Registered Global Security.
Accordingly, each person owning a beneficial interest in such Registered Global
Security must rely on the procedures of the Depositary and, if such person is
not a participant (as defined below) in such Depositary, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under such Indenture. The Depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
is entitled to give or take under an Indenture. Under existing industry
practices, if the Company requests any action of holders or any owner of a
beneficial interest in such Registered Global Security desires to give any
notice or take any action a holder is entitled to give or take under an
Indenture, the Depositary for such Registered Global Security would authorize
the participants holding the relevant beneficial interests to give such notice
or take such action, and such participants would authorize beneficial owners
owning through such participants to give such notice or to take such action or
would otherwise act upon the instructions of beneficial owners owning through
them.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depositary for such
Registered Global Security, the Depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depositary or its
nominee and who hold interests in such Debt Securities. The accounts to be
credited will be designated by the underwriters or agents engaging in the
distribution of such Debt Securities or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in a Registered Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests by
participants in such Registered Global Security will be shown on, and the
transfer of such beneficial interests will be effected only through, records
maintained by the Depositary for such Registered Global Security or by its
nominee. Ownership of beneficial interests in such Registered Global Security
by persons that hold through participants will be shown on, and the transfer of
such beneficial interests within such participants will be effected only
through, records maintained by such participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
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such laws may impair the ability of such purchasers to own, transfer or pledge
beneficial interests in such Registered Global Securities.
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal of (premium, if any, on), and interest, if any, on,
Debt Securities represented by a Registered Global Security registered in the
name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal of (premium, if any, on), or interest on, such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Registered Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Registered Global Security held through such
participants will be governed by standing instructions and customary practices,
and will be the responsibility of such participants. None of the Company, any
Trustee or any agent of the Company or such Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Registered
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any series of Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or ceases
to be a clearing agency registered under the Exchange Act, and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive certificated form in exchange for such Registered
Global Security.
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer Global Securities (a "Bearer Global Security")
that will be deposited with a Depositary, or a nominee thereof, identified in
the applicable Prospectus Supplement. Any such Bearer Global Securities may be
issued in temporary or permanent form. The specific terms and procedures,
including the specific terms of the depositary arrangement, with respect to any
portion of a series of Debt Securities to be represented by one or more Bearer
Global Securities will be described in the applicable Prospectus Supplement.
Unless and until it is exchanged in whole or in part for individual
certificates evidencing the Debt Securities represented thereby, 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 the
Depositary or any nominee to a successor depositary or any nominee of such
successor. The Company, in its sole discretion, may at any time determine that
Debt Securities shall no longer be represented by such Global Security and such
Global Security shall thereupon be exchanged for securities in definitive form
pursuant to the applicable Indenture.
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Defeasance
The Senior Indenture and the Subordinated Indenture provide that the
Company, at its option, (a) will be discharged from all obligations in respect
of the Debt Securities of a series (except for certain obligations to register
the transfer or exchange of such Debt Securities, replace stolen, lost or
destroyed Debt Securities, maintain paying agencies and hold moneys for payment
in trust), or (b) need not comply with certain covenants of the Senior and the
Subordinated Indenture, in each case if the Company irrevocably deposits in
trust with the Trustee money or obligations of or guaranteed by the United
States of America which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount
sufficient to pay all of the principal of (including any mandatory redemption
payments), premium, if any, and interest, if any, on, and repurchase
obligations, if any, with respect to, the Debt Securities of such series on the
dates such payments are due in accordance with the terms of such Debt
Securities. To exercise either such option, the Company is required to deliver
to the Trustee an opinion of independent tax counsel (which may be counsel to
the Company) to the effect that the deposit and related defeasance would not
cause the holders of the Debt Securities of such series to recognize income,
gain or loss for Federal income tax purposes. To exercise the option described
in clause (a) above, such opinion must be based either on a ruling of the
Internal Revenue Service or a change in the applicable Federal income tax
law(Article Fifteen).
Information Concerning the Trustee
Chemical Trust Company of California, the Trustee under each of the
Indentures, is also the trustee with respect to $150 million in aggregate
principal amount of the Company's 7 3/8% senior notes due 2003 (the "7 3/8%
Notes"), $100 in aggregate principal amount of the Company's 7 1/4% senior notes
due 2005 (the 7 1/4% Notes" and, collectively with the 7 3/8% Notes, the "Senior
Notes"), and $10.6 million in aggregate principal amount of the Company's 6 7/8%
Exchangeable Subordinated Debentures due 2011 (the "6 7/8% Debentures"), is the
rights agent under the Company's Shareowner Rights Plan. An affiliate of the
Trustee is the transfer agent, registrar and dividend disbursing agent for the
Company's Class A Common Stock. The Company also maintains banking
relationships in the ordinary course of business with an affiliate of the
Trustee.
The occurrence of a default under either the Indentures or under the
indentures governing the Senior Notes or the 6 7/8% Debentures could create a
conflicting interest for the Trustee under the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 (the "Trust Indenture Act").
If the default has not been cured or waived within 90 days after the Trustee
acquires a conflicting interest, the Trustee generally will be required by the
Trust Indenture Act to eliminate such conflicting interest or resign as Trustee
with respect to the affected Debt Securities, the 7 3/8% Notes, 7 1/4% Notes
and/or the 6 7/8% Debentures, as the case may be. In the event of the
Trustee's resignation, the Company will promptly appoint a successor trustee
with respect to any affected Debt Securities.
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Should the Company determine to appoint a successor trustee for any reason
prior to the issuance of a particular series of Debt Securities, information
regarding such successor trustee will be set forth in the applicable Prospectus
Supplement.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be direct, unsecured obligations of the
Company and will rank as to priority of payment with all outstanding
unsubordinated and unsecured indebtedness of the Company. Following is a
description of certain terms of Senior Debt Securities other than LYONs. If
LYONs are offered by the Company, a description of LYONs will be set forth in
the applicable Prospectus Supplement.
Certain Covenants
If material restrictive covenants are undertaken by the Company with respect
to a particular series of Senior Debt Securities, including LYONs offered as
Senior Debt Securities, such covenants will be described in the applicable
Prospectus Supplement and will be added to the Senior Indenture or LYONs
Indenture by means of an indenture supplement.
Events of Default
Unless otherwise specified in an applicable Prospectus Supplement, Events of
Default with respect to any series of Senior Debt Securities under the Senior
Indenture will include: (a) default in the payment of any principal of, or any
premium on, such series; (b) default in the payment of any installment of
interest on such series and continuance of such default for a period of 30 days;
(c) default with respect to any obligation to make payments to a sinking fund or
analogous obligation when the same becomes due by the terms of such series; (d)
default in the performance of any other covenant in the Senior Indenture with
respect to such series and continuance of such default for a period of 90 days
after receipt by the Company of notice of such default from the Senior Trustee
or receipt by the Company and the Senior Trustee of notice of such default from
the holders of at least 25% in aggregate principal amount of Senior Debt
Securities of such series then outstanding; (e) acceleration or non-payment at
maturity of (i) indebtedness for borrowed money of the Company or any subsidiary
or (ii) any guarantee of payment by the Company or any subsidiary of any
obligation of any Person, in either case in excess of $15,000,000, which
acceleration or non-payment is not cured, waived, rescinded or annulled, or such
indebtedness or guarantee is not discharged, within 15 days after receipt of
comparable written notice; or (f) certain events of bankruptcy, insolvency or
reorganization in respect of the Company (Section 5.01). The Senior Trustee may
withhold notice to the holders of a series of Senior Debt Securities of any
default (except in the payment of principal of, premium, if any, on or interest,
if any, on such series of Senior Debt Securities) if it considers such
withholding to be in the interests of holders of the Senior Debt Securities
(Section 6.02). Events of Default with respect to a particular series of
Senior Debt Securities issued under the Senior Indenture will not necessarily
constitute Events of Default with respect to any other series of Senior Debt
Securities.
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On the occurrence of an Event of Default with respect to a series of Senior
Debt Securities, the Senior Trustee or the holders of at least 25% in aggregate
principal amount of the Senior Debt Securities of such series then outstanding
may declare the principal (or in the case of Senior Debt Securities sold at an
original issue discount, the amount specified in the terms thereof) and accrued
interest thereon to be due and payable immediately (Section 5.02).
Within 120 days after the end of each fiscal year, an officer of the Company
must inform the Senior Trustee whether such officer knows of any default and
must describe any such default and the status thereof (Section 10.06). Subject
to provisions relating to its duties in case of default, the Senior Trustee is
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the direction of any holders of Senior Debt Securities unless the
Senior Trustee shall have received a satisfactory indemnity (Section 6.03).
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
the Company and will be subordinated in right of payment, as set forth in the
Subordinated Indenture, to the prior payment in full of all existing and future
Senior Indebtedness (Section 16.01) or of such Senior Indebtedness as may be
specified in an indenture supplement relating to a particular series of
Subordinated Debt Securities. Following is a description of certain terms of
Subordinated Debt Securities other than LYONs. If LYONs are offered by the
Company, a description of LYONs will be set forth in the applicable Prospectus
Supplement.
"Senior Indebtedness" means the principal of and any premium and interest on
(a) all indebtedness of, or guaranteed by, the Company (other than (i) the
Subordinated Debt Securities, (ii) securities issued pursuant to the Company's
Subordinated Indenture dated as of December 1, 1992 and (iii) the 6 7/8%
Debentures (collectively, the "Pari Passu Debt")), whether outstanding on the
date of the Subordinated Indenture or thereafter created, incurred or assumed,
that is (A) for money borrowed or (B) evidenced by a note or similar instrument
given in connection with the acquisition of any businesses, properties or assets
of any kind, except in the ordinary course of business, (b) all obligations of
the Company as lessee under capitalized leases or leases of property made as
part of any sale and leaseback transaction, and (c) all amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligations, unless in any of the foregoing cases in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Subordinated Debt Securities or to any Pari Passu
Debt (Section 1.01).
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
the holders of all Senior Indebtedness shall first be entitled to receive
payment in full of all amounts due or to become due thereon, or to require that
payment of all such amounts shall have been provided for, before the holders of
Subordinated Debt Securities shall be entitled to receive any payment or
distribution with respect to such Subordinated Debt Securities, (ii) the holders
of Subordinated Debt Securities will be required to pay over their share of such
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distribution in respect of the Subordinated Debt Securities to the holders of
Senior Indebtedness until such Senior Indebtedness is paid in full and (iii)
creditors of the Company who are not holders of Senior Indebtedness may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of Subordinated Debt Securities (Section 16.02).
As of September 30, 1995, outstanding Senior Indebtedness amounted to
approximately $514.0 million, consisting of (i) $354.7 million aggregate
indebtedness attributable to the Senior Notes and a series of senior notes in
the aggregate principal amount of $100,000,000 which matured on January 15, 1996
and (ii) $159.3 million of indebtedness of a subsidiary guaranteed by the
Company. At that date, the Company had available to it an additional $190.7
million which could be borrowed by such subsidiary under an existing revolving
line of credit and which, once borrowed, would be supported by the Company's
guarantee. The Company's subsidiaries have sold receivables, with recourse, to
financial institutions. The Company is contingently liable as guarantor with
respect to such receivables. In the event that such receivables financing
arrangements are deemed to constitute lending arrangements, the Company's
contingent obligations with respect to such receivables would constitute Senior
Indebtedness. As of September 30, 1995, approximately $23.0 million of
receivables were subject to such financing. The Subordinated Debt Securities
will rank pari passu with outstanding subordinated debt of the Company, which,
at September 30, 1995, aggregated approximately $10.7 million. The Subordinated
Debt Securities, as well as the Senior Debt Securities, will be effectively
subordinated to all liabilities, including trade payables, of the Company's
subsidiaries. See "Description of Debt Securities-General". There are no
restrictions in the Subordinated Indenture on the creation of additional
indebtedness, including Senior Indebtedness.
Events of Default
Unless otherwise specified in an applicable Prospectus Supplement, Events of
Default with respect to any series of Subordinated Debt Securities under the
Subordinated Indenture will include: (a) default in the payment of any
principal of, or any premium on, such series; (b) default in the payment of any
installment of interest on such series and continuance of such default for a
period of 30 days; (c) default with respect to any obligation to make payments
to a sinking fund or analogous obligation when the same becomes due by the terms
of such series; (d) default in the performance of any other covenant in the
Subordinated Indenture with respect to such series and continuance of such
default for a period of 90 days after receipt by the Company of notice of such
default from the Subordinated Trustee or receipt by the Company and the
Subordinated Trustee of notice of such default from the holders of at least 25%
in aggregate principal amount of Subordinated Debt Securities of such series
then outstanding; (e) an Event of Default with respect to an outstanding series
of Senior Debt Securities resulting from (i) default in the performance of
certain covenants in the Senior Indenture or (ii) acceleration or non-payment at
maturity of certain indebtedness of the Company or its subsidiaries or of
certain guarantees of payment by the Company or its subsidiaries, as described
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herein under "Senior Debt Securities -- Events of Default"; or (f) certain
events of bankruptcy, insolvency or reorganization in respect of the Company
(Section 5.01). The Subordinated Trustee may withhold notice to the holders of
a series of Subordinated Debt Securities of any default (except in the payment
of principal of, premium, if any, on or interest, if any, on such series of
Subordinated Debt Securities) if it considers such withholding to be in the
interest of holders of the Subordinated Debt Securities (Section 6.02). Events
of Default with respect to a particular series of Subordinated Debt Securities
issued under the Subordinated Indenture will not necessarily constitute Events
of Default with respect to any other series of Subordinated Debt Securities.
On the occurrence of an Event of Default with respect to a series of
Subordinated Debt Securities, the Subordinated Trustee or the holders of at
least 25% in aggregate principal amount of Subordinated Debt Securities of such
series then outstanding may declare the principal (or in the case of
Subordinated Debt Securities sold at an original issue discount, the amount
specified in the terms thereof) and accrued interest thereon to be due and
payable immediately (Section 5.02).
Within 120 days after the end of each fiscal year, an officer of the Company
must inform the Subordinated Trustee whether such officer knows of any default,
describing any such default and the status thereof (Section 10.06). Subject to
provisions relating to its duties in case of default, the Subordinated Trustee
is under no obligation to exercise any of its rights or powers under the
Subordinated Indenture at the direction of any holders of Subordinated Debt
Securities unless the Subordinated Trustee shall have received a satisfactory
indemnity (Section 6.03).
DESCRIPTION OF CLASS A COMMON STOCK
The following description of the Class A Common Stock sets forth certain
general terms and provisions of the Class A Common Stock to which any Prospectus
Supplement may relate, including a Prospectus Supplement providing that Class A
Common Stock will be issuable by the Company upon conversion of Debt Securities
or Preferred Stock. The statements below describing the Class A Common Stock
are in general terms and are in all respects subject to and qualified in their
entirety by reference to the applicable provisions of the Company's Certificate
of Incorporation and By-Laws.
The Company has the authority to issue 103,000,000 shares of capital stock,
of which 100,000,000 are Class A Common Stock, par value $1.50 per share, and
3,000,000 are Preferred Stock, no par value. At September 30, 1995, the Company
had outstanding 39,828,516 shares of Class A Common Stock and had no outstanding
shares of Preferred Stock.
Holders of Class A Common Stock are entitled to receive, equally and
ratably, such dividends as are declared by the Board of Directors, subject to
the preference of any outstanding Preferred Stock, and are entitled to cast one
vote per share on all matters voted upon by stockholders. There is no
cumulative voting for the election of directors and the Class A Common Stock
does not have any pre-emptive rights. Upon liquidation of the Company, holders
of Class A Common Stock are entitled to share equally and ratably in any assets
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available for distribution to them, after payment or provision for liabilities
and amounts owing with respect to any outstanding Preferred Stock. Payment and
declaration of dividends on the Class A Common Stock will be subject to
restrictions if the Company fails to pay dividends on any series of Preferred
Stock ranking prior to the Class A Common Stock as to the payment of dividends.
See "Description of Preferred Stock."
The registrar, transfer agent and dividend disbursing agent for the Class A
Common Stock is Chemical Mellon Shareholder Services LLC.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock or Class A Common Stock. Warrants may be issued independently
or together with any securities offered by any Prospectus Supplement and may be
attached to or separate from such securities. Each series of Warrants will be
issued under a separate warrant agreement (each, a "Warrant Agreement") to be
entered into between the Company and a warrant agent ("Warrant Agent"), all as
set forth in the Prospectus Supplement relating to the particular issue of
Warrants. The Warrant Agent will act solely as an agent of the Company in
connection with the Warrants of such series and will not assume any obligation
or relationship of agency or trust for or with any holders or beneficial owners
of Warrants.
The following summaries of certain provisions of the forms of Warrant
Agreements and Warrant certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Warrant Agreements and the Warrant certificates, as well as by
reference to any applicable Prospectus Supplement.
General
If Debt Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Warrants, the Warrant Agreement
relating to such Warrants and the certificates representing such Warrants,
including, where applicable, the following: (i) the title, offering price and
aggregate number of such Debt Securities Warrants; (ii) the title, rank,
aggregate principal amount, denominations and terms of the Debt Securities
purchasable upon exercise of such Debt Securities Warrants and the procedures
and conditions relating to the exercise of such Debt Securities Warrants; (iii)
the designation and terms of any related series of securities with which such
Debt Securities Warrants are being offered and the number of such Debt
Securities Warrants being offered with each such security; (iv) the date, if
any, on and after which such Debt Securities Warrants and the related series of
securities will be transferable separately; (v) the principal amount of the
series of Debt Securities purchasable upon exercise of each such Debt Securities
Warrant, the price, or the manner of determining the price, at which such
principal amount of Debt Securities of such series may be purchased upon such
exercise and whether such Debt Securities may be purchased for consideration
other than cash; (vi) the time or times, or period or periods, in which such
Debt Securities Warrants may be exercised and the date (the "Expiration Date")
on which such exercise right shall expire; (vii) whether the Warrant
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certificates will be issued in registered or bearer form and information
regarding any transfer, registration and book-entry procedures; (viii) any
anti-dilution provisions applicable to such Debt Securities Warrants; (ix)
United States federal income tax consequences; (x) the terms of any right of the
Company to redeem or accelerate the exercisability of such Debt Securities
Warrants; and (xi) any other terms of such Debt Securities Warrants.
In the case of Warrants for the purchase of Preferred Stock or Class A
Common Stock, the applicable Prospectus Supplement will describe the terms of
such Warrants, the Warrant Agreement relating to such Warrants and the
certificates representing such Warrants, including, where applicable, the
following: (i) the title, offering price and aggregate number of such Warrants;
(ii) in the case of Preferred Stock Warrants, the designation and terms of the
series of Preferred Stock purchasable upon exercise of such Preferred Stock
Warrants and whether such series of Preferred Stock is convertible or
exchangeable into or for other securities; (iii) the aggregate number of shares
of such series of Preferred Stock or Class A Common Stock purchasable on
exercise of each such Warrant and the price, or manner of determining the price,
at which such number of shares may be purchased; (iv) the designation and terms
of any related series of securities with which such Warrants are being offered
and the number of such Warrants being offered with each such security; (v) the
date, if any, on and after which such Warrants and the related series of
securities will be transferable separately; (vi) any minimum number of Warrants
exercisable at one time; (vii) the time or times, or period or periods, in which
such Warrants shall be exercisable and the Expiration Date; (viii) the terms of
any right of the Company to redeem or accelerate the exercisability of such
Warrants; (ix) whether the Warrant certificates will be issued in registered or
bearer form and information regarding any transfer, registration and book-entry
procedures; (x) any anti-dilution provisions applicable to such Warrants; (xi)
United States federal income tax consequences; and (xi) any other terms of such
Warrants.
Warrants may be exchanged for new Warrants of different denominations, may
(if in registered form) be presented for registration of transfer and may be
exercised at the corporate trust office of the Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. No service charge will be
made for any permitted transfer or exchange of Warrant certificates, but the
Company may require payment of any tax or other governmental charge payable in
connection therewith. Prior to the exercise of any Warrant to purchase Debt
Securities, holders of such Warrants will not have any of the rights of holders
of the Debt Securities purchasable upon such exercise, including the right to
receive payments of principal of (or premium, if any) or interest, if any, on
the Debt Securities purchasable upon such exercise or to enforce any covenants
in the applicable Indenture. Prior to the exercise of any Warrants to purchase
Preferred Stock or Class A Common Stock, holders of such Warrants will not have
any rights of holders of Preferred Stock or Class A Common Stock purchasable
upon such exercise, including the right to receive payments of dividends, if
any, on the Preferred Stock or Class A Common Stock purchasable upon such
exercise or to exercise any applicable right to vote.
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Exercise of Warrants
Each Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or number of shares of Preferred Stock or Class A
Common Stock, as the case may be, at such exercise price as shall in each case
be set forth, or calculable in the manner provided, in the offered Warrants and
described in the Prospectus Supplement relating thereto. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Company), unexercised Warrants will become void.
Warrants may be exercised by delivering payment to the Warrant Agent as
provided in the applicable Prospectus Supplement of the amount required to
purchase the underlying Debt Securities, Preferred Stock or Class A Common
Stock, as the case may be, purchasable upon such exercise together with certain
information set forth on the reverse side of the Warrant. Warrants will be
deemed to have been exercised upon receipt of payment of the exercise price,
subject to the receipt, within five business days, of the Warrant certificate
evidencing such Warrants. Upon receipt of such payment and such Warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the Debt
Securities, Preferred Stock or Class A Common Stock, as the case may be,
purchasable upon such exercise. If fewer than all of the Warrants represented
by such Warrant certificate are exercised, a new Warrant certificate will be
issued for the remaining amount of Warrants. The holder of a Warrant will be
required to pay any tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of underlying Debt
Securities, Preferred Stock or Class A Common Stock purchased upon such
exercise.
Modifications
The Warrant Agreements and the terms of the Warrants may be modified or
amended by the Company and the Warrant Agent, without the consent of any holder,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained therein, or in
any other manner that the Company deems necessary or desirable and that will not
materially adversely affect the interests of the holders of the Warrants.
The Company and the Warrant Agent may also modify or amend the Warrant
Agreement and the terms of the Warrants with the consent of the holders of not
less than a majority in number of the then outstanding unexercised Warrants
affected thereby; provided that no such modification or amendment that
accelerates the Expiration Date, increases the exercise price, reduces the
number of outstanding Warrants the consent of the holders of which is required
for any such modification or amendment, or otherwise materially adversely
affects the rights of the holders of the Warrants, may be made without the
consent of each holder affected thereby.
Warrant Adjustments
The terms and conditions on which the exercise price of and/or the number of
shares of Preferred Stock or Class A Common Stock covered by a Warrant are
subject to adjustment will be set forth in the Warrant certificate and the
applicable Prospectus Supplement. Such terms will include provisions for
adjusting the exercise price and/or the number of shares of Preferred Stock or
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Class A Common Stock covered by such Warrant; the events requiring such
adjustment; the events upon which the Company may, in lieu of making such
adjustment, make proper provisions so that the holder of such Warrant, upon
exercise thereof, would be treated as if such holder had exercised such Warrant
prior to the occurrence of such events; and provisions affecting exercise in the
event of certain events affecting the Preferred Stock or Class A Common Stock.
DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue 3,000,000 shares of Preferred Stock, no
par value, none of which were outstanding at September 30, 1995. Under the
Company's Certificate of Incorporation, the Board of Directors may from time to
time establish and issue one or more series of Preferred Stock and fix the
designations, powers, preferences and rights of the shares of such series and
the qualification, limitations or restrictions thereon, including, but not
limited to, the fixing of the dividend rights, dividend rate or rates,
conversion and exchange rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences, in each case, of any wholly unissued series of shares
of Preferred Stock. Any such series may rank junior to, on a parity with or
(subject to voting rights) senior to any other such series with respect to
dividends, distributions and liquidation, and any such series may have greater
or lesser voting rights than any other such series.
Because the Company is a holding company, its rights, the rights of its
creditors and of its shareowners, including the owners of the shares of the
Preferred Stock, to participate in any distribution of the assets of any
subsidiary upon the latter's liquidation or recapitalization will be subject to
the prior claims of the subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the subsidiary.
The principal sources of the Company's revenues are derived from its operating
subsidiaries. The subsidiaries are separate and distinct legal entities and,
except to the extent, if any, described in a Prospectus Supplement pertaining to
particular Offered Securities, will have no obligation, contingent or otherwise,
to pay any amounts or to make any funds available to the Company, whether by
dividends, loans or other payments. In addition, the payment of dividends and
certain loans and advances to the Company by such subsidiaries may be subject to
certain statutory or contractual restrictions, are contingent upon the earnings
of such subsidiaries and are subject to various business considerations.
The following description of the Preferred Stock sets forth certain terms
and provisions of the Preferred Stock to which any Prospectus Supplement may
relate. The statements below describing the Preferred Stock are in general
terms and are in all respects subject to and qualified in their entirety by
reference to the applicable provisions of the Company's Certificate of
Incorporation (including the applicable Certificate of Amendment describing a
particular series) and the Company's By-Laws.
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Dividends
Holders of shares of the Preferred Stock of each series shall be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of assets of the Company legally available for payment, cash dividends at such
rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the stock books of the Company on such record dates as shall be fixed
by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the Certificate of Amendment relating to such
series and described in the applicable Prospectus Supplement. If the Board of
Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of the Preferred Stock for which dividends are
non-cumulative, then the holders of such series of the Preferred Stock will have
no rights to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company will have no obligation at any subsequent
time to pay the dividend accrued for such period, whether or not dividends on
such series are declared payable on any future dividend payment date.
If shares of the Preferred Stock of any series are outstanding, no full
dividends shall be declared or paid or set apart for payment on the Preferred
Stock of the Company of any other series ranking, as to dividends, on a parity
with or junior to the Preferred Stock of such series for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Preferred Stock of such series for all dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. When dividends
are not paid in full upon the shares of Preferred Stock of any series and the
shares of any other series of Preferred Stock ranking on a parity as to
dividends with the Preferred Stock of such series, all dividends declared upon
shares of Preferred Stock of such series and any other series of Preferred Stock
ranking on a parity as to dividends shall be declared pro rata so that the
amount of dividends declared per share on the Preferred Stock of such series and
such other series of Preferred Stock shall in all cases bear to each other the
same ratio that accrued cumulative dividends per share on the shares of
Preferred Stock of such series and such other series of Preferred Stock bear to
each other. Unless otherwise provided in an applicable Prospectus Supplement,
holders of shares of Preferred Stock of any series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, payable as herein provided, on the Preferred Stock of such
series and no interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments of Preferred Stock of such series
which may be in arrears. Except as provided in the second preceding sentence,
unless full cumulative dividends on the Preferred Stock of any series have been
declared and paid or set apart for payment for all past dividend periods, no
dividends (other than in stock ranking junior to the Preferred Stock of such
series as to dividends and upon liquidation) shall be declared or paid or set
aside for payment or other distribution declared or made upon stock of the
Company ranking junior to or on a parity with the Preferred Stock of such series
as to dividends or upon liquidation, nor shall any stock of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to dividends
or upon liquidation be redeemed, purchased or otherwise acquired for any
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consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Company (except by
conversion into or exchange for stock of the Company ranking junior to the
Preferred Stock of such series as to dividends and upon liquidation).
Unless otherwise indicated in an applicable Prospectus Supplement, all
series of Preferred Stock offered hereby will be senior in right as to dividends
and in liquidation to the Class A Common Stock.
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
Redemption
The shares of Preferred Stock will be redeemable at the option of the
Company, as a whole or in part, at the times and at the redemption prices set
forth in the Certificate of Amendment relating to such series and described in
the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless full cumulative dividends on all
outstanding shares of any series of Preferred Stock shall have been paid or
contemporaneously are declared and paid for all past dividend periods, no shares
of any series of Preferred Stock shall be redeemed unless all outstanding shares
of Preferred Stock of such series are simultaneously redeemed; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of Preferred Stock of such series or of shares of such other series of
Preferred Stock pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Preferred Stock of such series, and
unless the full cumulative dividends on all outstanding shares of any cumulative
Preferred Stock of such series and any other stock of the Company ranking on a
parity with such series as to dividends and upon liquidation shall have been
paid or contemporaneously are declared and paid for all past dividend periods,
the Company shall not purchase or otherwise acquire directly or indirectly any
shares of Preferred Stock of such series (except by conversion into or exchange
for stock of the Company ranking junior to the Preferred Stock of such series as
to dividends and upon liquidation.)
Unless otherwise indicated in the applicable Prospectus Supplement, notice
of redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of record of shares of Preferred Stock to be
redeemed at the address shown on the stock transfer books of the Company. After
the redemption date, dividends will cease to accrue on the shares of Preferred
Stock called for redemption and all rights of the holders of such shares will
terminate, except the right to receive the redemption price without interest.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any stock over which a series of Preferred Stock has
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preference or priority in the distribution of assets on any liquidation,
dissolution or winding up of the Company, the holders of such series of
Preferred Stock shall be entitled to be paid in full an amount equal to the
liquidation preference per share (as set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon.
Except as otherwise provided in the Certificate of Amendment relating to such
series and described in an applicable Prospectus Supplement, after payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of Preferred Stock will have no right or claim to any of the remaining
assets of the Company. In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up, the available assets of the
Company are insufficient to pay such amount on all outstanding shares of a
series of Preferred Stock and the corresponding amounts payable on all shares of
other classes or series of stock of the Company ranking on a parity with such
series of Preferred Stock in the distribution of assets, then the holders of
such series of Preferred Stock and of all other such classes or series shall
share ratably in any distribution of assets in proportion to the full amounts to
which they would otherwise be respectively entitled.
If such payment shall have been made in full to all holders of shares of
such series of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of stock ranking
junior to such series of Preferred Stock upon liquidation, dissolution or
winding up, according to their respective rights and preferences and in each
case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, or
the sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
otherwise provided in the related Certificate of Amendment and described in the
applicable Prospectus Supplement.
Unless otherwise provided in a Prospectus Supplement relating to shares of
Preferred Stock, so long as any shares of Preferred Stock remain outstanding,
the Company will not, without the affirmative vote or consent of the holders of
a majority of the shares of each series of Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (i) authorize, create or issue, or
increase the authorized or issued amount of, any class or series of stock
ranking prior to such series of Preferred Stock with respect to payment of
dividends or the distribution of assets on liquidation, dissolution or winding
up or reclassify any authorized stock of the Company into any such prior shares,
or create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such prior shares; or (ii) amend, alter or
repeal the provisions of the Company's Certificate of Incorporation, whether by
merger, consolidation or otherwise, so as to materially and adversely affect any
right, preference, privilege or voting power of such series of Preferred Stock
or the holders thereof; provided, however, that any increase in the amount of
the authorized shares of Preferred Stock or the creation or issuance of other
series of Preferred Stock, or any increase in the amount of authorized shares of
such series or of any other series of Preferred Stock, in each case ranking on a
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parity with or junior to the Preferred Stock of such series, shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
Unless otherwise provided in the related Certificate of Amendment and
described in the applicable Prospectus Supplement, the Company's Certificate of
Incorporation may be amended to increase the number of authorized shares of
Preferred Stock without the vote of the holders of outstanding shares of
Preferred Stock.
Conversion and Exchange
The Prospectus Supplement for any series of Preferred Stock will describe
the provisions in the related Certificate of Amendment that set forth the
conditions or terms, if any, upon which any such series will be convertible or
exchangeable, and the terms of the securities into which such series will be
convertible or exchangeable. If the conversion price or terms of exchange for a
series of Preferred Stock is subject to adjustment upon the occurrence of
certain events, the formulas for such adjustment will be set forth in the
related Certificate of Amendment and described in the applicable Prospectus
Supplement. Conversion price adjustments or omissions in making such adjustments
may, under certain circumstances, be deemed to be distributions that could be
taxable as dividends under the Internal Revenue Code.
Unless otherwise provided in the related Certificate of Amendment and
described in the applicable Prospectus Supplement, if a series of Preferred
Stock is convertible into another security ("Convertible Preferred Stock"),
holders of such Convertible Preferred Stock will have the right, at their option
and at any time, to convert any of such Convertible Preferred Stock, initially
at the conversion price set forth in the Prospectus Supplement relating to such
Convertible Preferred Stock, provided that, if such series of Convertible
Preferred Stock is called for redemption, the conversion rights pertaining
thereto will terminate at the close of business on the business day immediately
preceding the date fixed for redemption. No fractional shares will be issued
upon conversion of shares of any series of Convertible Preferred Stock, but if
such conversion results in a fraction, an equivalent amount will be paid in cash
by the Company on such basis as shall be set forth in the Certificate of
Amendment relating to such series and described in the applicable Prospectus
Supplement.
Shares of Preferred Stock surrendered for conversion during the period from
the close of business on any regular record date next preceding any dividend
payment date to the opening of business on such dividend payment date (except
shares of Preferred Stock called for redemption) must be accompanied by payment
of an amount equal to the dividend or distribution on such payment date on the
shares of Preferred Stock so converted. In the case of any shares of Preferred
Stock which have been converted after any regular record date but on or before
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the next dividend payment date (except shares of Preferred Stock called for
redemption within such period), the dividend or distribution payable on such
payment date shall be paid notwithstanding such conversion, and such dividend
shall be paid or distribution made to the holder of such shares of Preferred
Stock on such regular record date. Except as described above, no dividend or
distribution on converted shares of Preferred Stock will be payable by the
Company on any dividend payment date subsequent to the date of conversion. No
other payment or adjustment for dividends or distributions will be made upon
conversion.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of the
material general provisions of the Deposit Agreement (as defined below) and of
the Depositary Shares and Depositary Receipts do not purport to be complete and
are subject to and qualified in their entirety by reference to the Deposit
Agreement and Depositary Receipts relating to each series of Preferred Stock
subject to a Deposit Agreement, which Deposit Agreement (including the form of
Depositary Receipt) will be filed with the Commission and incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such series of the
Preferred Stock. Further material provisions of the Depositary Shares will be
summarized in the Prospectus Supplement relating thereto.
General
The Company may, at its option, elect to offer fractional shares of
Preferred Stock. In the event such option is exercised, the Company will offer
to the public receipts for Depositary Shares, each of which will represent a
fraction (to be set forth in the Prospectus Supplement relating to a particular
series of the Preferred Stock) of a share of a particular series of the
Preferred Stock as described below.
The shares of any series of the Preferred Stock represented by
Depositary Shares will be deposited under a separate deposit agreement (the
"Deposit Agreement") among the Company, a bank or trust company selected by the
Company (the "Share Depositary") and the holders from time to time of the
Depositary Receipts. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable fraction
of a share of Preferred Stock represented by such Depositary Share, to all the
rights and preferences of the Preferred Stock represented thereby (including
dividend, voting, redemption and liquidation rights).
The Depositary Shares relating to any series of the Preferred Stock
will be evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons purchasing
such Depositary Shares in accordance with the terms of the offering made by the
related Prospectus Supplement.
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Upon surrender of Depositary Receipts at the office of the Share
Depositary and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Receipts is entitled to
have the Share Depositary deliver to such holder the whole shares of Preferred
Stock underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
Dividends and Other Distributions
The Share Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts relating to such Preferred Stock in proportion, insofar
as practicable, to the respective numbers of Depositary Shares evidenced by such
Depositary Receipts held by such holders on the relevant record date. The Share
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Receipts a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Share Depositary for distribution to record holders of
Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Share Depositary
will distribute such amounts of the securities or property received by it as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Depositary Receipts held by such holders on
the relevant record date, unless the Share Depositary determines that it is not
feasible to make such distribution, in which case the Share Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
of such securities or property.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock shall be made available to holders of Depositary
Receipts relating to such Preferred Stock.
The amount distributed in all of the foregoing cases will be reduced by
any amounts required to be withheld by the Company or the Share Depositary on
account of taxes and governmental charges.
Redemption of Depositary Shares
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Share Depositary resulting from the redemption, in whole or in
part, of such series of the Preferred Stock held by the Share Depositary. The
Share Depositary shall mail notice of redemption not less than 30 and not more
than 60 days prior to the date fixed for redemption to the record holders of the
Depositary Receipts evidencing the Depositary Shares to be so redeemed at their
respective addresses appearing in the Share Depositary's books. The redemption
price per Depositary Share will be equal to the applicable fraction of the
redemption price per share payable with respect to such series of the Preferred
Stock plus all money and other property, if any, payable with respect to such
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Depositary Share, including all amounts payable by the Company in respect of any
accumulated but unpaid dividends. Whenever the Company redeems shares of
Preferred Stock held by the Share Depositary, the Share Depositary will redeem
as of the same redemption date the number of Depositary Shares representing
shares of Preferred Stock so redeemed. If less than all the Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed will be selected by lot
or pro rata (subject to rounding to avoid fractions of Depositary Shares) as may
be determined by the Share Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will cease,
except the right to receive the moneys payable upon such redemption and any
money or other property to which such holders were entitled upon such redemption
upon surrender to the Share Depositary of the Depositary Receipts evidencing
such Depositary Shares.
Voting of the Preferred Stock
Upon receipt of notice of any meeting or action to be taken by written
consent at or as to which the holders of the Preferred Stock are entitled to
vote or consent, the Share Depositary will mail the information contained in
such notice of meeting or action to the record holders of the Depositary
Receipts evidencing the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Receipts on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled to
instruct the Share Depositary as to the exercise of the voting rights or the
giving or refusal of consent, as the case may be, pertaining to the number of
shares of the Preferred Stock represented by the Depositary Shares evidenced by
such holder's Depositary Receipts. The Share Depositary will endeavor, insofar
as practicable, to vote, or give or withhold consent with respect to, the
maximum number of whole shares of the Preferred Stock represented by all
Depositary Shares as to which any particular voting or consent instructions are
received, and the Company will agree to take all action which may be deemed
necessary by the Share Depositary in order to enable the Share Depositary to do
so. The Share Depositary will abstain from voting, or giving consents with
respect to, shares of the Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Receipts evidencing
Depositary Shares representing such Preferred Stock.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
relating to any series of Preferred Stock and any provision of the related
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Share Depositary in any respect which they may deem
necessary or desirable. However, any amendment which imposes or increases any
fees, taxes or charges upon holders of Depositary Shares or Depositary Receipts
relating to any series of Preferred Stock or which materially and adversely
alters the existing rights of such holders will not be effective unless such
amendment has been approved by the record holders of Depositary Receipts
evidencing at least a majority of such Depositary Shares then outstanding.
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Notwithstanding the foregoing, no such amendment may impair the right of any
holder of Depositary Shares or Depositary Receipts to receive any moneys or
other property to which such holder may be entitled under the terms of such
Depositary Receipts or the Deposit Agreement at the times and in the manner and
amount provided for therein. A Deposit Agreement may be terminated by the
Company or the Share Depositary only after (i) all outstanding Depositary Shares
relating thereto have been redeemed and any accumulated and unpaid dividends on
the Preferred Stock represented by the Depositary Shares, together with all
other moneys and property, if any, to which holders of the related Depositary
Receipts are entitled under the terms of such Depositary Receipts or the related
Deposit Agreement, have been paid or distributed as provided in the Deposit
Agreement or provision therefor has been duly made, (ii) there has been a final
distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of the related Depositary
Receipts, or distributed to the holders of the related Depositary Receipts, or
(iii) in the event the Depositary Shares relate to a series of Preferred Stock
which is convertible into shares of Common Stock or another series of Preferred
Stock, all outstanding Depositary Shares have been converted into shares of
Common Stock or another series of Preferred Stock.
Miscellaneous
The Share Depositary will forward to record holders of Depositary
Receipts, at their respective addresses appearing in the Share Depositary's
books, all reports and communications from the Company which are delivered to
the Share Depositary and which the Company is required to furnish to the holders
of the Preferred Stock or Depositary Receipts.
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay the charges of the Share Depositary in connection with the initial
deposit of the Preferred Stock and the initial issuance of the Depositary
Receipts evidencing the Depositary Shares, any redemption of the Preferred Stock
and any withdrawals of Preferred Stock by the holders of Depositary Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
The Deposit Agreement will contain provisions relating to adjustments in the
fraction of a share of Preferred Stock represented by a Depositary Share in the
event of a change in par or stated value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger or
sale of substantially all of the assets of the Company.
Neither the Share Depositary nor any of its agents nor any registrar nor the
Company will be (i) liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under the Deposit
Agreement, (ii) subject to any liability under the Deposit Agreement to holders
of Depositary Receipts other than for the relevant party's gross negligence or
willful misconduct, or (iii) obligated to prosecute or defend any legal
proceeding in respect of any Depositary Receipts, Depositary Shares or the
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
- 30 -
<PAGE>
written advice of counsel or accountants, or information provided by holders of
Depositary Receipts or other persons in good faith believed to be competent and
on documents reasonably believed to be genuine.
Resignation or Removal of Share Depositary
The Share Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Share Depositary, any such resignation or removal to take effect upon the
appointment of a successor Share Depositary and its acceptance of such
appointment. Such successor Share Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal.
OTHER MATTERS APPLICABLE TO THE OFFERED SECURITIES
On February 9, 1994, the Board of Directors of the Company adopted a Rights
Plan (the "Shareowner Rights Plan") which provided for a dividend of one
Preferred Share Purchase Right (collectively, the "Rights") to be declared for
each share of Class A Common Stock outstanding at the close of business on
February 18, 1994 and authorized the issuance of one Right for each share of
Class A Common Stock issued thereafter and prior to certain change in control
events. The Rights are generally not exercisable until 10 days after a person
or group acquires beneficial ownership (as defined) 15% of the Class A Common
Stock or announces a tender offer which could result in a person or group
beneficially owning 15% or more of the Class A Common Stock (an "Acquisition").
Each Right, should it become exercisable, will entitle the owner to buy 1/100th
of a share of the Company's Series A Junior Preferred Stock at an exercise
price of $80.00, subject to adjustment.
In the event of an Acquisition without the approval of the Board, each Right
will entitle the owner, other than an Acquirer (as defined), to buy at the
Rights' then current exercise price, a number of shares of Class A Common Stock
having a market value equal to twice the exercise price. In addition, if at the
time when there was a 15% shareowner, the Company were to be acquired by merger,
shareowners with unexercised Rights could purchase common stock of the acquirer
having a value equal to twice the exercise price of the Rights. The Board may
redeem the Rights for $0.01 per Right at any time prior to an Acquisition.
Unless earlier redeemed, the Rights will expire on February 18, 2004.
In addition to the Shareowner Rights Plan, the staggered election of the
Company's Board of Directors, the authority to issue Preferred Stock without
further shareowner approval, the effect of certain by-laws, the possible impact
of the antitrust laws and certain provisions of New Jersey statutes may deter a
hostile takeover of the Company.
PLAN OF DISTRIBUTION
- 31 -
<PAGE>
The Company may sell the Offered Securities to or through underwriters or
dealers; directly to other purchasers; through agents; or through a combination
of any such methods of sale. Any such underwriter, dealer or agent involved in
the offer and sale of the Offered Securities will be named in the applicable
Prospectus Supplement or Prospectus Supplements, including any such Supplement
distributed for the purpose of providing pricing and other related information
(a "Pricing Supplement").
The distribution of Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Company also may offer and
sell the Offered Securities in exchange for one or more of its then outstanding
securities.
In connection with the sale of Offered Securities, underwriters may receive
compensation from the Company or from purchasers of Offered Securities in the
form of discounts, concessions or commissions. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters, dealers
or agents in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement or Pricing
Supplement. Underwriters, dealers and agents 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 realized by them on
resale of the Offered Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents that
participate in the distribution of Offered Securities may be entitled, under
agreements entered into with the Company, to indemnification against and
contribution toward the payment of certain liabilities, including liabilities
under the Securities Act, and to reimbursement for certain expenses.
If so indicated in a Prospectus Supplement, the Company will authorize
dealers acting as the Company's agents to solicit offers by certain institutions
to purchase the Offered Securities to which such Prospectus Supplement relates
from the Company at the public offering price set forth in such Prospectus
Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for
payment and delivery on the date or dates stated in such Prospectus Supplement.
Each Contract will be for an amount not less than, and the aggregate principal
amount of Offered Securities sold pursuant to Contracts shall be not less nor
more than, the respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions, but
will in all cases be subject to the approval of the Company. Contracts will not
be subject to any conditions except (i) the purchase by an institution of the
Offered Securities covered by its Contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject, and (ii) if the Offered Securities are being sold to
- 32 -
<PAGE>
underwriters, the Company shall have sold to such underwriters the total
principal amount of the Offered Securities less the principal amount thereof
covered by Contracts.
Certain of the underwriters, dealers or agents and their affiliates or
associates may engage in transactions with and perform services for the Company
or one or more of its subsidiaries in the ordinary course of business.
The specific terms and manner of sale, including the place and time of
delivery, of the Offered Securities in respect of which this Prospectus is being
delivered will be set forth or summarized in the applicable Prospectus
Supplement.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Lowenstein, Sandler, Kohl, Fisher & Boylan, a Professional Corporation,
Roseland, New Jersey.
EXPERTS
The consolidated financial statements of the Company as of September 30,
1995 and 1994, for the years ended September 30, 1995 and 1994, the one month
period ended September 30, 1993, and the year ended August 31, 1993 incorporated
in this Prospectus by reference to the Company's Annual Report on Form 10-K for
the year ended September 30, 1995 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in auditing and accounting.
- 33 -
<PAGE>
============================================= =========================
No dealer, salesman or any other person is
authorized in connection with any offering
made hereby to give any information or to
make any representation other than those
contained or incorporated by reference in
this Prospectus or any Prospectus
Supplement and, if given or made, such $400,000,000
information or representation must not be
relied upon as having been authorized. BERGEN BRUNSWIG
This Prospectus and any Prospectus CORPORATION
Supplement do not constitute an offer to
sell or a solicitation of an offer to buy
any security other than the securities
offered thereby, nor do they constitute an
offer to sell or a solicitation of an
offer to buy any of the securities offered
thereby to any person in any jurisdiction
in which it is unlawful to make such an
offer or solicitation. Neither the Securities
delivery of this Prospectus or any
Prospectus Supplement nor any sale made
hereunder and thereunder shall, under any
circumstances, create any implication that
the information contained herein or
therein is correct as of any date
subsequent to the date hereof or thereof.
------------------------- -------------------------
TABLE OF CONTENTS PROSPECTUS
------------------------- -------------------------
<PAGE>
Page
----
Available Information................ 3
Incorporation of Certain Documents
by Reference..................... 4
The Company.......................... 5
Use of Proceeds...................... 5
Ratio of Earnings to Fixed Charges... 5
Description of Debt Securities....... 6
Senior Debt Securities............... 15
Subordinated Debt Securities......... 16
Description of Class A Common Stock.. 18
Description of Warrants.............. 19
Description of Preferred Stock....... 22
Description of Depositary Shares..... 27
Other Matters Applicable to the
Offered Securities............... 31
Plan of Distribution................. 31
Legal Matters........................ 33
Experts.............................. 33
============================================= =========================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
<TABLE>
<CAPTION>
Item 14. Other Expenses of Issuance and Distribution
<S> <C>
Securities and Exchange Commission registration fee................... $ 137,932
Legal fees and expenses............................................... 75,000
Accounting fees and expenses.......................................... 75,000
Printing and engraving expenses....................................... 75,000
Trustees' fees and expenses........................................... 15,000
Rating Agency Fees.................................................... 200,000
Miscellaneous expenses................................................ 62,068
---------
Total................................................................. $ 640,000
=========
</TABLE>
All expenses other than the Securities and Exchange Commission registration fee
are estimated.
Item 15. Indemnification of Directors and Officers
Under the Company's Certificate of Incorporation, every person who is or was
a director, officer, employee or agent of the Company and the legal
representative of such a person is entitled to receive indemnification from the
Company to the fullest extent permitted by law. Under New Jersey law, directors
and officers may be indemnified in certain situations, subject to the Company's
having taken certain actions and the directors and officers having met certain
specified standards of conduct. In addition, in April, 1986, the Company
entered into agreements, which were amended on July 3, 1986 (collectively, the
"Indemnity Agreement"), to indemnify each of its directors against liabilities
and defense costs to the extent that such directors would have been insured
under the director and officer liability insurance policies which were in effect
on December 31, 1984 (the "1984 Policy"). The 1984 Policy afforded broad
coverage for liabilities arising under ERISA and the securities and antitrust
laws. The obligation of the Company to indemnify a director under the Indemnity
Agreement is limited to $30 million, the maximum coverage available under the
1984 Policy. However, the Indemnity Agreement does not limit a director's right
to recover in excess of $30 million from the Company if the director is
otherwise entitled to statutory indemnification. The Indemnity Agreement was
ratified by the shareowners at the annual meeting held on December 17, 1986.
The Company currently maintains a directors' and officers' insurance policy
which provides liability coverage of $30 million.
In addition, the Company's Certificate of Incorporation eliminates the
personal liability of directors and officers to the Company and its shareowners
for monetary damages for acts or omissions (including negligent and grossly
negligent acts or omissions) in violation of a director's or officer's fiduciary
duty of care. The duty of care refers to a fiduciary duty of directors and
officers to manage the affairs of the Company with the same degree of care as
would be applied by an "ordinarily prudent person under similar circumstances".
The provisions of the Company's Restated Certificate of Incorporation which
II - 1
<PAGE>
eliminate the personal liability of directors and officers do not, in any way,
eliminate or limit the liability of a director or officer for breaching his duty
of loyalty (i.e., the duty to refrain from fraud, self-dealing and transactions
involving improper conflicts of interest) to the Company or its shareowners,
failing to act in good faith, knowingly violating a law or obtaining an improper
personal benefit and do not have any effect on the availability of equitable
remedies.
See also the undertakings set forth with respect to Item 17 herein.
Item 16. Exhibits
1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to
purchase Class A Common Stock, Debt Securities, Warrants to purchase
Debt Securities, Preferred Stock, Warrants to purchase Preferred
Stock, Depositary Shares, Warrants to Purchase Depositary Shares and
Units.*
4.1 Restated Certificate of Incorporation, as amended, is incorporated by
reference herein to Exhibit 3 to the Registrant's Current Report on
Form 8-K dated May 23, 1995.
4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit
3(a) to the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995.
4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant
and Chemical Trust Company of California, as Rights Agent, is
incorporated by reference herein to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A dated February 14, 1994.
4.4 Form of Indenture for Senior Debt Securities (excluding LYONs).
4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs).
4.6 Form of Indenture for LYONs (including form of LYON).
4.7 Form of Senior Debt Security.*
4.8 Form of Subordinated Debt Security.*
4.9 Form of Debt Security Warrant Agreement.*
4.10 Form of Common Stock Warrant Agreement.*
4.11 Form of Preferred Stock Warrant Agreement.*
4.12 Form of specimen Warrant Certificate for Debt Securities.*
4.13 Form of specimen Warrant Certificate for Common Stock.*
4.14 Form of specimen Warrant Certificate for Preferred Stock.*
4.15 Form of specimen certificate representing shares of Class A Common
Stock.*
4.16 Form of Certificate of Amendment with respect to Preferred Stock.*
4.17 Form of specimen certificate representing shares of Preferred Stock.*
4.18 Form of Depositary Agreement (including form of Depositary Receipt).*
II - 2
<PAGE>
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the
validity of Offered Securities.*
10.1 Form of Amended and Restated Supplemental Executive Retirement Plan.
10.2 Form of Amended and Restated Capital Accumulation Plan.
12.1 Computation of Ratio of Earnings to Fixed Charges of the Registrant.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (to be included
in its opinion filed as Exhibit 5.1).*
24.1 Power of Attorney (set forth on the Signature Page of this
Registration Statement).
25.1 Statement of Eligibility of Trustee on Form T-1.
_______________
[FN]
* To be filed by amendment or to be filed as an exhibit to a report and
incorporated herein by reference.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of a 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
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in the Registration Statement.
II - 3
<PAGE>
Provided, however, that clauses (i) and (ii) above shall not apply if the
information required to be included in a post-effective amendment by these
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") that are incorporated by reference in this Registration Statement.
B. That, for the purpose of determining any liability under the 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.
C. 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.
D. That for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this 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.
E. That insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
F. That for purposes of determining any liability under the Act, the
information omitted from a 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 Act
shall be deemed to be part of this Registration Statement as of the time it was
declared effective.
G. That for the purpose of determining any liability under the 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.
II - 4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orange, State of California, on the 29th day of
January, 1996.
BERGEN BRUNSWIG CORPORATION
By: /s/ Robert E. Martini
--------------------------
Robert E. Martini
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints Robert E. Martini, Donald R. Roden, Neil
F. Dimick and Milan A. Sawdei, and each of them singly, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this Registration Statement (including supplements thereto
and post-effective amendments), 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
requisite and necessary to be done in and about the premises, as fully and 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
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert E. Martini Chairman of the Board, January 29, 1996
- ------------------------- Chief Executive Officer
Robert E. Martini and Director
/s/ Jose E. Blanco, Sr. Director January 29, 1996
- -------------------------
Jose E. Blanco, Sr.
<PAGE>
/s/ Rodney H. Brady Director January 29, 1996
- -------------------------
Rodney H. Brady
/s/ John Calasibetta Senior Vice President and January 29, 1996
- ---------------------- Director
John Calasibetta
/s/ Neil F. Dimick Executive Vice President, January 29, 1996
- ---------------------- Chief Financial Officer,
Neil F. Dimick Principal Accounting Officer
and Director
/s/ Charles C. Edwards,M.D. Director January 29, 1996
- --------------------------
Charles C. Edwards, M.D.
/s/ Charles J. Lee Director January 29, 1996
- ----------------------
Charles J. Lee
/s/ George R. Liddle Director January 29, 1996
- -----------------------
George R. Liddle
/s/ James R. Mellor Director January 29, 1996
- ----------------------
James R. Mellor
/s/George E. Reinhardt, Jr. Director January 29, 1996
- ------------------------
George E. Reinhardt, Jr.
/s/ Donald R. Roden President, Chief Operating January 29, 1996
- -------------------------- Officer and Director
Donald R. Roden
/s/ Francis G. Rodgers Director January 29, 1996
- ------------------------
Francis G. Rodgers
<PAGE>
EXHIBIT INDEX
1.1 Form of Underwriting Agreement for Class A Common Stock, Warrants to
purchase Class A Common Stock, Debt Securities, Warrants to purchase
Debt Securities, Preferred Stock, Warrants to purchase Preferred
Stock, Depositary Shares, Warrants to purchase Depositary Shares and
Units.*
4.1 Restated Certificate of Incorporation, as amended, is incorporated by
reference herein to Exhibit 3 to the Registrant's Current Report on
Form 8-K dated May 23, 1995.
4.2 Amended and Restated By-Laws are incorporated by reference to Exhibit
3(a) to the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995.
4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant
and Chemical Trust Company of California, as Rights Agent, is
incorporated by reference herein to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A dated February 14, 1994.
4.4 Form of Indenture for Senior Debt Securities (excluding LYONs).
4.5 Form of Indenture for Subordinated Debt Securities (excluding LYONs).
4.6 Form of Indenture for LYONs (including form of LYON).
4.7 Form of Senior Debt Security.*
4.8 Form of Subordinated Debt Security.*
4.9 Form of Debt Security Warrant Agreement.*
4.10 Form of Common Stock Warrant Agreement.*
4.11 Form of Preferred Stock Warrant Agreement.*
4.12 Form of specimen Warrant Certificate for Debt Securities.*
4.13 Form of specimen Warrant Certificate for Common Stock.*
4.14 Form of specimen Warrant Certificate for Preferred Stock.*
4.15 Form of specimen certificate representing shares of Class A Common
Stock.*
4.16 Form of Certificate of Amendment with respect to Preferred Stock.*
4.17 Form of specimen certificate representing shares of Preferred Stock.*
4.18 Form of Depositary Agreement (including form of Depositary Receipt).*
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan as to the
validity of Offered Securities.*
10.1 Form of Amended and Restated Supplemental Executive Retirement Plan.
10.2 Form of Amended and Restated Capital Accumulation Plan.
12.1 Computation of Ratio of Earnings to Fixed Charges of the
Registrant.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan (to be included
in its opinion filed as Exhibit 5.1).*
24.1 Power of Attorney (set forth on the Signature Page of this
Registration Statement).
25.1 Statement of Eligibility of Trustee on Form T-1.
_______________
[FN]
*To be filed by amendment or to be filed as an exhibit to a report and
incorporated herein by reference.
EXHIBIT 4.4
BERGEN BRUNSWIG CORPORATION
TO
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
__________________________
Indenture
Dated as of January 1, 1996
__________________________
Senior Debt Securities
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
------- ---------
<S> <C>
310 (a)(1) ............................................... 6.09
(a)(2) ............................................... 6.09
(a)(3) ............................................... N.A.
(a)(4) ............................................... N.A.
(a)(5) ............................................... 6.09
(b) ............................................... 6.08
(c) ............................................... N.A.
311 (a) ............................................... 6.13
(b) ............................................... 6.13
(c) ............................................... N.A.
312 (a) ............................................... 7.01, 7.02
(b) ............................................... 7.02
(c) ............................................... 7.02
313 (a) ............................................... 7.03
(b) ............................................... 7.03
(c) ............................................... 7.03
(d) ............................................... 7.03
314 (a) ............................................... 7.04, 10.06
(b) ............................................... N.A.
(c)(1) ............................................... 1.02
(c)(2) ............................................... 1.02
(c)(3) ............................................... N.A.
(d) ............................................... N.A.
(e) ............................................... 1.02
315 (a) ............................................... 6.01 (a)
(b) ............................................... 6.02, 7.03
(c) ............................................... 6.01 (b)
(d) ............................................... 6.01 (c)
(e) ............................................... 5.14
316 (a)(last sentence) .................................... 1.01 ("outstanding")
(a)(1)(A) ............................................. 5.12
(a)(1)(B) ............................................. 5.13
(a)(2) ............................................... N.A.
(b) ............................................... 5.08
(c) ............................................... 1.04
317 (a)(1) ............................................... 5.03
(a)(2) ............................................... 5.04
(b) ............................................... 10.03
318 (a) ............................................... 1.07
- ------------------------
<FN>
1 This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture, N.A. means Not Applicable.
</TABLE>
<PAGE>
TABLE OF CONTENTS(1)
PAGE
----
PARTIES................................................................ 1
RECITALS OF THE COMPANY................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01.......................................................... 1
Definitions:
Act............................................................... 2
Affiliate; control................................................ 2
Authenticating Agent.............................................. 2
Authorized Newspaper.............................................. 2
Bearer Security................................................... 2
Board of Directors; Board......................................... 3
Board Resolution.................................................. 3
Business Day...................................................... 3
Capital Stock..................................................... 3
CEDEL; CEDEL SA................................................... 3
Closing Price..................................................... 3
Commencement Date................................................. 3
Commission........................................................ 3
Common Stock...................................................... 4
Company........................................................... 4
Company Request; Company Order.................................... 4
Component Currency................................................ 4
Conversion Date................................................... 4
Conversion Event.................................................. 4
Corporate Trust Office............................................ 4
corporation....................................................... 4
coupon............................................................ 4
Covenant Defeasance............................................... 4
Curreny; currency................................................. 4
Defaulted Interest................................................ 4
Defeasance........................................................ 4
Defeasible Series................................................. 4
Depositary........................................................ 5
Designated Currency............................................... 5
Dollar; $......................................................... 5
Dollar Equivalent................................................. 5
ECU............................................................... 5
Election Date..................................................... 5
Euroclear......................................................... 5
European Communities.............................................. 5
European Monetary System.......................................... 5
Event of Default.................................................. 5
Exchange Act...................................................... 5
- i -
<PAGE>
PAGE
----
Exchange Date..................................................... 5
Exchange Rate Agent............................................... 5
Exchange Rate Officer's Certificate............................... 5
Expiration Time................................................... 5
Foreign Currency.................................................. 6
Global Security................................................... 6
Holder............................................................ 6
Indenture......................................................... 6
Indexed Security.................................................. 6
interest.......................................................... 6
Interest Payment Date............................................. 6
Long Term Debt.................................................... 6
Market Exchange Rate.............................................. 6
Maturity.......................................................... 7
non-electing share................................................ 7
Notice of Default................................................. 7
Officers' Certificate............................................. 7
Opinion of Counsel................................................ 7
Original Issue Discount Security.................................. 7
Outstanding....................................................... 7
Paying Agent...................................................... 9
Person............................................................ 9
Place of Payment.................................................. 9
Predecessor Security.............................................. 9
Purchased Shares.................................................. 9
Redemption Date................................................... 9
Redemption Price.................................................. 9
Reference Date.................................................... 9
Registered Security............................................... 9
Regular Record Date............................................... 9
Remarketing Entity................................................ 9
Repayment Date.................................................... 9
Repayment Price................................................... 9
Responsible Officer............................................... 10
Securities........................................................ 10
Security Register; Security Registrar............................. 10
Special Record Date............................................... 10
Specified Amount.................................................. 10
Stated Maturity................................................... 10
Subsidiary........................................................ 10
Trading Day....................................................... 10
Trigger Event..................................................... 10
Trustee........................................................... 10
Trust Indenture Act; TIA.......................................... 11
United States..................................................... 11
United States Alien............................................... 11
U.S. Government Obligations....................................... 11
Valuation Date.................................................... 11
Vice President.................................................... 11
SECTION 1.02. Compliance Certificates and Opinions................... 11
SECTION 1.03. Form of Documents Delivered to Trustee................. 12
SECTION 1.04. Acts of Holders; Record Dates.......................... 12
SECTION 1.05. Notices, Etc., to Trustee and Company.................. 14
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SECTION 1.06. Notice to Holders; Waiver.............................. 15
SECTION 1.07. Conflict with Trust Indenture Act...................... 16
SECTION 1.08. Effect of Headings and Table of Contents............... 16
SECTION 1.09. Successors and Assigns................................. 16
SECTION 1.10. Separability Clause.................................... 16
SECTION 1.11. Benefits of Indenture.................................. 16
SECTION 1.12. Governing Law.......................................... 17
SECTION 1.13. Legal Holidays......................................... 17
SECTION 1.14. Counterparts........................................... 17
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally........................................ 17
SECTION 2.02. Form of Trustee's Certificate of Authentication........ 18
SECTION 2.03. Securities Issuable in Global Form..................... 18
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series................... 19
SECTION 3.02. Denominations.......................................... 22
SECTION 3.03. Execution, Authentication, Delivery and Dating......... 22
SECTION 3.04. Temporary Securities................................... 25
SECTION 3.05. Registration, Registration of Transfer and Exchange.... 27
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities....... 31
SECTION 3.07. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset................................ 32
SECTION 3.08. Optional Extension of Maturity......................... 35
SECTION 3.09. Persons Deemed Owners.................................. 35
SECTION 3.10. Cancellation........................................... 36
SECTION 3.11. Computation of Interest................................ 36
SECTION 3.12. Currency and Manner of Payments in Respect of
Securities............................................. 37
SECTION 3.13. Appointment and Resignation of Successor Exchange
Rate Agent............................................. 40
SECTION 3.14. CUSIP Numbers.......................................... 41
SECTION 3.15. Certification by a Person Entitled to Delivery of
Bearer Security........................................ 41
SECTION 3.16. Judgments.............................................. 41
SECTION 3.17 Medium Term Securities................................. 42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................ 42
SECTION 4.02. Application of Trust Money............................. 43
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ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default...................................... 44
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..... 46
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 47
SECTION 5.04. Trustee May File Proofs of Claim....................... 47
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................. 48
SECTION 5.06. Application of Money Collected......................... 48
SECTION 5.07. Limitation on Suits.................................... 49
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 50
SECTION 5.09. Restoration of Rights and Remedies..................... 50
SECTION 5.10. Rights and Remedies Cumulative......................... 50
SECTION 5.11. Delay or Omission Not Waiver........................... 50
SECTION 5.12. Control by Holders..................................... 51
SECTION 5.13. Waiver of Past Defaults................................ 51
SECTION 5.14. Undertaking for Costs.................................. 52
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................ 52
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.................... 52
SECTION 6.02. Notice of Defaults..................................... 53
SECTION 6.03. Certain Rights of Trustee.............................. 54
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. 55
SECTION 6.05. May Hold Securities.................................... 55
SECTION 6.06. Money Held in Trust.................................... 55
SECTION 6.07. Compensation and Reimbursement......................... 56
SECTION 6.08. Disqualification; Conflicting Interests................ 56
SECTION 6.09. Corporate Trustee Required; Eligibility................ 57
SECTION 6.10. Resignation and Removal; Appointment of Successor...... 58
SECTION 6.11. Acceptance of Appointment by Successor................. 59
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business............................................ 60
SECTION 6.13. Preferential Collection of Claims Against Company...... 61
SECTION 6.14. Appointment of Authenticating Agent.................... 61
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders............................................. 62
SECTION 7.02. Preservation of Information; Communications to Holders. 63
SECTION 7.03. Reports by Trustee..................................... 63
SECTION 7.04. Reports by Company..................................... 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms... 64
SECTION 8.02. Successor Person Substituted........................... 64
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders...... 65
SECTION 9.02. Supplemental Indentures with Consent of Holders......... 66
SECTION 9.03. Execution of Supplemental Indentures.................... 67
SECTION 9.04. Effect of Supplemental Indentures....................... 68
SECTION 9.05. Conformity with Trust Indenture Act..................... 68
SECTION 9.06. Reference in Securities to Supplemental Indentures...... 68
SECTION 9.07 Notice of Supplemental Indenture........................ 68
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.............. 68
SECTION 10.02. Maintenance of Office or Agency......................... 69
SECTION 10.03. Money for Securities Payments to Be Held in Trust....... 70
SECTION 10.04. Purchase of Securities by Company or Subsidiary......... 71
SECTION 10.05. Payment of Additional Amounts........................... 71
SECTION 10.06. Statement by Officers as to Default..................... 72
SECTION 10.07. Existence............................................... 72
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................ 73
SECTION 11.02. Election to Redeem; Notice to Trustee................... 73
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed....... 73
SECTION 11.04. Notice of Redemption.................................... 74
SECTION 11.05. Deposit of Redemption Price............................. 75
SECTION 11.06. Securities Payable on Redemption Date................... 75
SECTION 11.07. Securities Redeemed in Part............................. 76
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................ 76
SECTION 12.02. Provisions with Respect to any Sinking Funds............ 76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article................................ 78
SECTION 13.02. Repayment of Securities................................. 78
SECTION 13.03. Exercise of Option; Notice.............................. 78
SECTION 13.04. Election of Repayment by Remarketing Entities........... 79
SECTION 13.05. Securities Payable on the Repayment Date................ 79
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for Which Meetings May Be Called............... 80
SECTION 14.02. Call, Notice and Place of Meetings...................... 80
SECTION 14.03. Persons Entitled to Vote at Meetings.................... 80
SECTION 14.04. Quorum; Action.......................................... 81
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................. 81
SECTION 14.06. Counting Votes and Recording Action of Meetings......... 82
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 83
SECTION 15.02. Defeasance and Discharge................................ 83
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SECTION 15.03. Covenant Defeasance..................................... 83
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance......... 84
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions........... 85
SECTION 15.06. Reinstatement........................................... 86
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 16.01. Conversion Privilege and Conversion Price............... 87
SECTION 16.02. Exercise of Conversion Privilege........................ 87
SECTION 16.03. Fractions of Shares..................................... 88
SECTION 16.04. Adjustment of Conversion Price.......................... 89
SECTION 16.05. Notice of Adjustments of Conversion Price............... 93
SECTION 16.06. Notice of Certain Corporate Action...................... 94
SECTION 16.07. Company to Reserve Common Stock......................... 95
SECTION 16.08. Taxes on Conversions.................................... 95
SECTION 16.09. Covenant as to Common Stock............................. 95
SECTION 16.10. Cancellation of Converted Securities, etc............... 95
SECTION 16.11. Provision in the Case of Consolidation, Merger
or Sales of Assets...................................... 95
SECTION 16.12. Trustee's Adjustment Disclaimer......................... 96
TESTIMONIUM............................................................ 96
SIGNATURES AND SEALS................................................... 96
ACKNOWLEDGMENTS........................................................ 98
FORMS OF CERTIFICATION................................................. A-1-1
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THIS INDENTURE, dated as of January 1, 1996, is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92668-3510(herein called the "Company"), and CHEMICAL TRUST
COMPANY OF CALIFORNIA, 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 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 one or more series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture and of any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, or by
Commission rule or regulation under the TIA, either directly or by reference
therein, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05, have the meanings assigned to them
therein; the terms "cash transaction" and "self-liquidating" paper, as used
in TIA Section 311, shall have the meanings assigned to them in the rules of
the Commission adopted under the TIA; and the following TIA terms used in
this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means the Holder;
"indenture to be qualified" means this Indenture;
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"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain other terms are defined elsewhere herein.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 2.01
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
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"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee of such board or any committee of
officers of the Company acting pursuant to authority granted by such board or
any committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board of Directors or
the Company or any officer or employee of the Company authorized to take such
action by a Board Resolution.
"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.
"Capital Stock" for any corporation means any and all shares, interest,
rights to purchase, warrants, options, participants or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Closing Price" for any day means the last reported sale price of the Common
Stock regular way on such day or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular way
on such day, in either case on the New York Exchange or, if the Common Stock is
not listed or admitted to trading on such exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the NASDAQ National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the- counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. If the Common Stock
is not listed or admitted to trading on any national securities exchange, quoted
on such National Market System or listed in any list of bid and asked prices in
the over-the-counter market, "Closing Price" shall mean the fair market value of
the Common Stock as determined in good faith by the Board of Directors.
"Commencement Date" shall have the meaning specified in Section 16.04(8).
"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.
"Common Stock" shall mean the Class A Common Stock, par value $1.50 per
share, of the Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which such Class A Common Stock
shall be reclassified or changed.
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"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. The foregoing sentence shall likewise apply to any
subsequent 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.
"Component Currency" has the meaning specified in Section 3.12(h).
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee in San Francisco,
California at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 50 California
Street, San Francisco, California 94111.
"corporation" means a corporation, association, company, joint stock company
or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 15.03.
"Currency" or "currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 15.02 and "Covenant
Defeasance" has the meaning specified in Section 15.03.
"Defeasible Series" has the meaning specified in Section 15.01.
"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 by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
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"Designated Currency" has the meaning specified in Section 3.16.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of
Section 3.12.
"Election Date" has the meaning specified in Section 3.12(h).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 3.04(b).
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate", means a certificate setting forth the
applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest, if any, on Securities denominated in ECU and
other composite Currency or Foreign Currency, and signed by the Chairman of the
Board, the President, any Vice President, the Treasurer or any Assistant
Treasurer of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01, and delivered to the Trustee.
"Expiration Time" shall have the meaning specified in Section 16.04(6).
"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Global Security" means a Security 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, in accordance
with Section 3.03.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, the bearer thereof.
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"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 3.01 hereof.
"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, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 10.05, includes such additional amounts.
"Long Term Debt" means, indebtedness of the Company or its Subsidiaries
classified as long-term debt under generally accepted accounting principles.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case as
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in New York City, London or other principal market for such
currency or currency unit in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency unit shall be that
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upon which a nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in order to make
payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether on a Repayment Date, at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"non-electing share" shall have the meaning specified in Section 16.11.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4) or 5.01(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Company, and
delivered to the Trustee, which shall comply with Section 1.02 to the extent
applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, and who shall be acceptable to the
Trustee, which shall comply with Section 1.02 to the extent applicable.
"Original Issue Discount Security" means any (i) 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 5.02 and
(ii) other Security deemed an original issue discount security for United
States federal income tax purposes.
"Outstanding", when used with respect to Securities of a particular series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(2) such 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 in accordance with Section 4.01; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) such Securities as to which Defeasance has been effected pursuant
to Section 15.02 or 15.03; and
(4) such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been authenticated
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and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a Person in whose hands
such Securities are legal, valid and binding 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 or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, (B) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or in the case of
an Original Issue Discount Security or Indexed Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (A) above or (C) below, respectively) of such Security, (C) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 3.01, and (D) 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
Sections 3.01 and 10.02, or if no such place shall be specified, at the offices
of the Paying Agent.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
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particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 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.
"Purchased Share" shall have the meaning specified in Section 16.04(6).
"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.
"Reference Date" shall have the meaning specified in Section 16.04(4).
"Registered Security", means any Security in the form of Registered
Securities established pursuant to Section 2.01 which is registered in the
Security Register.
"Regular Record Date", for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer" means the President or any Vice President, Assistant
Vice President or Trust Officer of the Trustee to whom any matter has been
referred because of such officer's knowledge 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 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.12(h).
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
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Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as amended in
accordance with the terms hereof.
"Subsidiary" shall mean (i) a corporation a majority 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, or (ii) a partnership in which the Company or a Subsidiary of the
Company is at the date of determination, a general partner of such partnership,
or (iii) any other Person (other than a corporation or a partnership) in which
the Company, a Subsidiary of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person. For the purposes of this definition, the term
"voting stock" means stock having ordinary voting power for the election of
directors irrespective of whether or not stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency.
"Trading Day" means, with respect to the Common Stock, each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on the exchange or market on which the Common Stock is traded.
"Trigger Event" shall have the meaning specified in Section 16.04(7).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 9.05;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" or "TIA" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended and the rules
and regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
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<PAGE>
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, 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 payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "Vice President".
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than delivery of any
Security to the Trustee for authentication pursuant to Section 3.03), 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. In the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, however, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 10.06)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, 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 1.04. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given 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. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 14.06.
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<PAGE>
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 to 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.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(d) 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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), if such record date is fixed by Board Resolution, such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. In the event no such record date is fixed
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by Board Resolution, such record date shall be the later of 10 days prior to the
first solicitation of such action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 7.01. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date, and that no such authorization, agreement or
consent may be amended, withdrawn or revoked once given by a Holder, unless the
Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents or
unless and to the extent required by law.
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 1.05. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, Attention: Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
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Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, in London, and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if a Responsible
Officer has actual knowledge that the Securities of such series are then listed
on any other stock exchange outside the United States and such stock exchange
shall so require, in any other required city outside the United States or, if
not practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture or any Security 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.
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SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA 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 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent, Security Registrar and Authenticating
Agent and the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but without
regard to principles of conflicts of law.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (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, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
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SECTION 1.14. Counterparts.
------------
This Indenture 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 Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially such form (including
temporary or permanent global 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 market or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the form of Securities of any series or coupons 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 3.03 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on each Security 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.
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____________________________________
, as Trustee
By:_________________________________
(Authorized Officer)
SECTION 2.03. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.01, then, notwithstanding clause (9) of
Section 3.01 and the provisions of Section 3.02, any such Global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03(g) shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03(g).
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear, CEDEL or such other Person as may be known
to the Trustee to be the bearer thereof.
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be issued in one or
more series. There shall be established in or pursuant to a Board Resolution,
and, subject to Section 3.03, set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters in
clauses (1) and (2)), if so provided, may be determined by the Company with
respect to unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except
for any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue,
or the method by which such date or dates will be determined or extended,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Registered Security
on any Interest Payment Date, the circumstances, if any, in which the
Company may defer interest payments and the manner of computing interest if
other than as specified in Section 3.11;
(5) the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 1.06 will be
published;
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(6) the period or periods within which or the date or dates on 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;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms and
conditions upon which, Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 3.04 and 3.05,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall be
dated if other than the date of original issuance of the first Security of
such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.05;
(11) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of
such series shall be issuable, if other than denominations of $5,000 and any
integral multiple thereof;
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or any
composite Currency or index, including but not limited to the ECU, and, if
any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) whether either, both or neither of Section 15.02 or Section 15.03
shall apply to the Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and premium, if any) and interest, if
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any, on any Securities of the series shall be payable and the Currency or
Currencies, if any, in which payment of the principal of (and premium, if
any) or the interest, if any, on Registered Securities at the election of
each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the time and manner of determining the exchange rate between Currency or
Currencies in which such Securities are denominated or stated to be paid and
the Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of Section 3.12;
(15) if the amount of payments of principal of (or premium, if any) or
interest, if any, on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 3.04;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) 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
5.02;
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
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rates of interest, if any, may be determined, with different dates on which such
interest may be payable and with different Redemption or Repayment Dates and may
be denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any 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 the series.
SECTION 3.02. Denominations.
-------------
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.01 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon, and shall be 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. Coupons shall bear
the facsimile signature of an authorized officer of the Company.
Securities or coupons 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
coupons or did not hold such offices at the date of such Securities or coupons.
(b) 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, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
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Indenture. If any Security shall be represented by a permanent Global Bearer
Security, then, for purposes of this Section 3.03 and Section 3.04, the notation
of a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section
3.06, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. 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 2.01 and 3.01, 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 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except further as enforcement thereof may be limited
by (1) requirements that a claim with respect to any Securities denominated
other than in Dollars (or a Foreign Currency or Currency unit judgment in
respect of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or Currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section 3.03, Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
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be delivered by the Trustee to such Depositary or a custodian pursuant to such
Depositary's instructions.
(d) 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.
(e) Notwithstanding the provisions of Section 3.01 and this Section 3.03,
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 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to this Section 3.03 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.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date contemplated by Section 3.01.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. 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 3.10, 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.
(h) To the extent required by law, each Depositary designated pursuant to
Section 3.01 for a Global Security must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(i) The Securities may contain such notations, legends or endorsements as
may be required by law, stock exchange rule or usage.
SECTION 3.04. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
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omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, 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 (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that unless otherwise contemplated or specified with respect
to any series of Securities pursuant to Section 3.01, no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further that a Bearer Security shall be delivered in exchange for a
Bearer Security only in compliance with the applicable conditions set forth in
Sections 3.03, 3.04 and 3.05. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Depositary, such temporary Global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
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its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form, set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 3.01; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 3.03, 3.04 and 3.05, as
applicable.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear,
CEDEL or another Person, as the case may be, to request such exchange on his
behalf and delivers to Euroclear, CEDEL or such other Person, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or
in such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on a temporary Global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
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temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 3.05. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 3.05
and Section 10.02, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 3.01, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust office, is initially appointed Security
Registrar for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 3.01, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be issued
in exchange for Bearer Securities (except as otherwise specified as contemplated
by Section 3.01 with respect to a Bearer Security in global form) of the same
series, of any authorized denominations and of like tenor and terms and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
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at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor and terms after the close of business at such office or
agency of (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 3.01(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to each Person specified by such Depositary in writing a new
Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate
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principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount
of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
(a) in definitive registered form in authorized denominations, if the Securities
of such series are issuable as Registered Securities, (b) in definitive bearer
form in authorized denominations, with coupons attached, if the Securities of
such series are issuable as Bearer Securities or (c) as either Registered or
Bearer Securities, as shall be specified by the beneficial owner thereof, if the
Securities of such series are issuable in either form; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company knows or has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section to the
persons, and in such authorized denominations, as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary Global
Security unless the Company or its agent shall have received from the person
entitled to receive the definitive Bearer Security a certificate substantially
in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and
provided further that delivery of a Bearer Security shall occur only outside the
United States; and provided further that no definitive Bearer Security will be
issued if the Company has reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange of
Securities shall be 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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
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No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer, registration of transfer or exchange of Securities, other than
exchanges of Securities expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of like
tenor and terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchange thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or 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 exchange
therefor (together with all coupons not destroyed, lost or stolen) a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding with coupons corresponding to any
coupons appertaining to the surrendered Security; provided, that any such Bearer
Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05,
as applicable.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
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principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security or coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
--------------
(a) Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.09, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 3.01 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
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respect to that portion of such permanent Global Security held for its account
by the Depositary, for the purpose of permitting each of Euroclear and CEDEL
to credit the interest, if any, received by it in respect of such permanent
Global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof 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 Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 30 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
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Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or agency
on any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 75 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 1.06,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
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such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 3.07 and Section 3.05,
each Security delivered under this Indenture upon 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.
In the case of any Security that is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any
Security whose Maturity is prior to such Interest Payment Date), interest shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security that is converted, interest after the date of
conversion of such Security shall not be payable.
SECTION 3.08. Optional Extension of Maturity.
------------------------------
The provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 75 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
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<PAGE>
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 1.06, notice of such higher interest rate to
the Holder of any such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.09. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered 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 Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.05 and 3.07) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security is overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
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Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption, repayment at
the option of the Holder, 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. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. 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 and coupons held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.11. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
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effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 3.12(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
3.01, then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
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Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any currency unit shall
be determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but
not limited to, the ECU. A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date
of such replacement equal to the Dollar Equivalent of the Specified Amount
of such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
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this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 3.01(14) by which the written
election referred to in Section 3.12(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and Exchange Rate Agent (and such Trustee will promptly thereafter
give notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to the ECU or any other currency unit
in which Securities are denominated or payable, the Company will immmediately
give written notice thereof to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
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Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 3.01 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 3.14. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 3.15. Certification by a Person Entitled to Delivery of
-------------------------------------------------
Bearer Security.
---------------
Whenever any provision of this Indenture or a Security contemplates that
certification be given by a Person entitled to delivery of a Bearer Security,
such certification shall be provided substantially in the form of Exhibit A-1
and, if applicable, A-2 hereto, with only such changes as shall be approved by
the Company and consented to by the Trustee whose consent shall not unreasonably
be withheld.
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SECTION 3.16. Judgments.
---------
The Company may provide, pursuant to Section 3.01, for the Securities of any
series that, to the fullest extent possible under applicable law and except as
may otherwise be specified as contemplated in Section 3.01, (a) the obligation,
if any, of the Company to pay the principal of (and premium, if any) and
interest, if any, on the Securities of any series and any appurtenant coupons in
a Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest, if any, on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 3.17. Medium Term Securities.
-----------------------
Notwithstanding any contrary provision herein, if all Securities of a series
are not to be originally issued at one time, it shall not be necessary for the
Company to deliver to the Trustee an Officers' Certificate, Board Resolution,
supplemental indenture, Opinion of Counsel or Company Order otherwise required
pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
to the Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 2.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount established
for such series pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by Company Order upon the telephonic, electronic or
written order of persons designated in such Company Order, Officers'
Certificate, supplemental indenture or Board Resolution (any such telephonic or
electronic instructions to be promptly confirmed in writing by such persons) and
that such persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
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terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion or
transfer or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series and rights to receive payments of
principal (and premium, if any) and interest, if any, thereon and any right to
receive additional amounts, as provided in Section 10.05), and the Trustee, on
the demand and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of that series theretofore authenticated, issued
and delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities of that series surrendered in exchange for
Registered Securities of that series and maturing after such exchange, surrender
of which is not required or has been waived as provided in Section 3.05; (ii)
Securities of that series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06; (iii) coupons
appertaining to Bearer Securities of that series called for redemption or
surrendered for repayment and maturing after the relevant Redemption Date or
Repayment Date, as appropriate, surrender of which has been waived as provided
in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03), have been delivered to the Trustee for
cancellation; or
(B) all such Securities of that series and, in the case of (B) (i) or
(ii) below, any coupons appertaining thereto, not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, 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,
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and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount, which shall be immediately due and payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee cancelled or for cancellation, for
principal (and any premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee with respect to that series under Section 6.07, the obligations of the
Trustee to any Authenticating Agent with respect to that series under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 or 15.04 shall be held
in trust and applied by it, in accordance with the provisions of the series of
Securities in respect of which it was deposited, the appurtenant coupons 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 premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 4.02 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal, premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive payment
from the money so held in trust.
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<PAGE>
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to any series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body);
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution creating such series of Securities or in the form of Security
for such Series:
(1) default in the payment of any installment of interest upon any Security
of that series or of any coupon appertaining thereto when it becomes due and
payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when and as the same becomes due by the terms of the Securities of
such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in the performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warrants in this
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of 90
consecutive days after receipt by the Company from the Trustee or by the Company
and the Trustee from the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, of a written notice, by registered or
certified mail, specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5)(i) a default occurs under any instrument or instruments (including
this Indenture) under which there is at the time outstanding, or by which there
may be secured or evidenced, any indebtedness of the Company or any Subsidiary
for money borrowed by the Company or any Subsidiary or any guarantee of payment
by the Company or any Subsidiary of any obligation of any Person which results
in acceleration (whether by declaration or automatically) of, or the nonpayment
at maturity (after giving effect to any applicable grace of period) of, such
indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or nonpayment and (ii) there shall have been a failure to cure such
default or to discharge all such defaulted indebtedness or guarantee or such
default is not otherwise waived and such acceleration has not been rescinded or
annulled within fifteen (15) days after receipt by the Company from the Trustee
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<PAGE>
or by the Company and the Trustee from the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding (excluding, if such
defaulted indebtedness includes any series of Securities, such series of
Securities) of a written notice thereof, by registered or certified mail, and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
order by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a 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 unstayed and in effect for a period of
90 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such series of Securities is issued or in the form
of Security for such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, unless the principal amount of all the
Securities of such series shall have already become due and payable, then in
every such case either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of that series (acting
as a separate class) may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Outstanding Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and payable.
Upon payment to the Holders of such amount, all obligations of the Company in
respect of the payment of principal of the Securities of such series shall
terminate.
At any time after such acceleration with respect to Securities of any series
has occurred and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
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Holders of a majority in principal amount of the Outstanding Securities of that
series (and without notice to any Holder of that Series), by written notice to
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay, in the Currency in which the Securities of that series are payable (except
as may otherwise be specified pursuant to Section 3.01 for such series and
except as may be provided in Section 3.12, if and to the extent applicable):
(A) all overdue installments of interest on all Outstanding Securities
of that series, and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, to the extent that payment of such interest is
lawful,
(C) interest upon the Defaulted Interest at the rate or rates
prescribed therefor in such Securities and any related coupons, to the
extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder, and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due the Trustee under
Section 6.07,
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of (or premium, if any) or interest, if
any, on Securities of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if an Event of Default specified in Sections
5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities and any coupons appertaining thereto, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest, at the rate or
rates prescribed therefor in such Securities and coupons, 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 and all
other amounts due the Trustee under Section 6.07.
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<PAGE>
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (and
premium, if any) or interest, if any, in respect) of the Securities of that
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in the
case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be provided in the terms thereof) (and premium, if any)
and interest, if any, owing and unpaid in respect of such Securities and any
appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) 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 of Securities of such series and coupons to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for such reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
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<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons.
---------------------
All rights of action and claims under this Indenture or the Securities or
coupons 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, and any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and coupons
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 premium,
if any) and interest, if any, respectively. The Holders of each series of
Securities denominated in ECU, any other composite Currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in
the Currency in which such series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
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THIRD: The balance, if any, to the Company, its successors or assigns,
or to whomever may be lawfully entitled to receive same, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.06. At least 15 days before such record date, the
Company shall, upon written request of the Trustee, mail to each Holder a notice
that states the record date, payment date and amount to be paid.
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related coupons 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
security or 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 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.05 or 3.07) interest, if any, on such Security or coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on the Redemption Date or Repayment Date, as
the case may be) and to institute suit for the enforcement of any such payment
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on and after the respective Stated Maturities or applicable Redemption Date or
Repayment Date, and such rights shall not be impaired without the consent of
such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of any Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders of any Security or coupon shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of any Security or coupon 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 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 5.12. Control by 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) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction, and
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust
Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by notice to the Trustee (and without
notice to any other Holder) on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except (if not theretofore cured):
(1) an Event of Default described in Section 5.01(1), (2) or (3) or
(2) a default in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereto. This Section 5.13 shall be in
lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316
(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Trustee
or the Company, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
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The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to any series of Securities,
(1) the Trustee shall not be liable except for the performance of
such duties and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder of which the
Trustee has knowledge with respect to Securities of any series, the Trustee
shall transmit by mail, in the manner and to the extent provided in TIA Section
313(c), to all Holders of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund installment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of such series; and provided; further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series
no such notice to Holders of such series shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, 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. The Trustee shall not be deemed to have
knowledge of any Event of Default or of any event or condition which, with the
giving of notice, the passage of time or both, might constitute an Event of
Default unless (i) the Trustee has received written notice thereof from the
Company or a Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof.
SECTION 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
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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 instruction, 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 to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction:
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent, reasonably acceptable to the Company, or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder, and no Depositary or
Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them;
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required; and
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(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, 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 or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. 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 coupons and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
-------------------
Subject to the provisions of Section 10.03, all moneys received by the
Trustee shall, until used or applied as herein provided, be held by the Trustee
in trust hereunder for the purposes for which they were received, and shall be
segregated from the funds of the Trustee, other than funds held in trust. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed to in writing by the Company and the
Trustee.
SECTION 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
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disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and each of the Trustee's
directors, officers, employees, agents, successors and assigns (the
"Indemnitees") or any predecessor Trustee for, and to hold them harmless
against, any and all losses, damages, claims, liabilities or expenses,
including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee), incurred without negligence or bad faith on
their 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 the Indemnitees against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder as Trustee, Authenticating Agent, Security Registrar or Paying
Agent.
The obligations of the Company under this Section 6.07 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the termination of this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any, on) or interest, if any, on
particular Securities. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(6) or Section
5.01(7), the expenses (including reasonable fees and expenses of its counsel)
and the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy, insolvency
or other similar law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 6.07 within a reasonable amount of time after a Responsible Officer
becomes actually aware of such claim or liability.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) 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.
To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under (i) this Indenture with
respect to Securities of any particular series of Securities other than that
series and (ii) any other indenture or indentures in each case as and to the
extent that such series or indenture satisfies the requirements set forth in
Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
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(a) There shall at all times be a Trustee hereunder with respect to
each series of Securities, which shall be either:
(i) a corporation organized and doing business under the laws of
the United States of America or of any State, the District of Columbia
or, for Bearer Securities only, any Territory authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by Federal, State, District of Columbia or Territory
authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least
$50,000,000, except that the initial Trustee hereunder shall be required to
maintain a combined capital and surplus of at least $10,000,000. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as
trustee for the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in Section 6.10.
(b) The Company may appoint a separate Trustee for any one or more
series of Securities. The Trustee for each such series shall be identified
in a supplemental indenture and shall be the sole Trustee with respect to
such series of Securities and shall have all the rights, duties and
obligations as with respect to such series as reserved to the Trustee
hereunder as if set forth in such supplemental indenture.
SECTION 6.10. Resignation and Removal, Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
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 6.11 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
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jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee subject to removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 with respect to any series of
Securities after written request therefor by the Company or by any Holder of
a Security of that series who has been a bona fide Holder of such Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(5) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series, or in the case of clauses (4) or (5), with
respect to all series of Securities, or (ii) subject to Section 5.14, 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 removal of the Trustee and the
appointment of a successor Trustee with respect to such series, or in the case
of clauses (4) or (5), with respect to all series of Securities.
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
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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 6.11. 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 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of such series and accepted
appointment in the manner required by Section 6.11, 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.
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 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its reasonable charges, if any, 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.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
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or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
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 the
first two paragraphs of this Section 6.11, as the case may be.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and under the Trust Indenture Act.
SECTION 6.12. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor, directly or
indirectly, of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of Section 311(a) of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor), excluding any creditor relationships described in Section
311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
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SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee, with the prior written approval of the Company, 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 exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent appointed by the Trustee 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 or, for Bearer Securities only, any Territory of the United
States of America, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if other
than the Company itself, subject to supervision or examination by Federal,
State, District of Columbia or such Territory 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 appointed by the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.14, 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 6.14, 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, if other than the Company, 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, if other than the
Company, 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 6.14, the
Trustee, with the approval of the Company, 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
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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 6.14.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, 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.
Chemical Trust Company of California,
as Trustee
By:__________________________________
As Authenticating Agent
By:__________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company and any other obligor upon the Securities will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, containing all information in
the possession or control of the Company or any other such obligor, or of
any of the Company's or such other obligor's Paying Agents, as to the names
and addresses of the Holders of Registered Securities of such series as of
the preceding Regular Record Date (or a date to be determined pursuant to
Section 3.01 for Original Issue Discount Securities), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished. The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities filed with the Trustee by
such Holders.
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 Section 312(b) of
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
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 in writing when any Securities are listed on any stock
exchange.
SECTION 7.04. 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 Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; 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.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other Person
or transfer (by lease, assignment, sale or otherwise) all or substantially all
of its properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (i) shall be a
corporation, partnership or trust organized and validly existing under the
laws of the United States of America or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, and the
assumption contemplated by clause (a) above, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with
this Article VIII and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another wholly-owned Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 8.02. Successor Person Substituted.
----------------------------
The successor Person formed by such consolidation or into which the Company
is merged or the successor Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein, and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged and released from all obligations and covenants
under this Indenture and the Securities. The Trustee shall enter into a
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supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of all or any series of Securities or coupons (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of such series); provided that such action pursuant to this clause (2) shall
not adversely affect the interests of the Holders of any series or any
appurtenant coupons in any material respect; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination provided for in this clause (5): (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 Outstanding Security; or
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(6) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11; or
(9) 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 (9) shall not
adversely affect the interests of the Holders of Securities of any series or
any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of 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 Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof (or premium, if any) or the
rate of interest, if any, thereon or any premium payable upon the redemption
thereof, or repayment thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 10.05 (except as contemplated by
Section 8.01(1) and permitted by Section 9.01(1)) 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 5.02, or change any Place of Payment where, or the Currency in
which, any Security (or premium, if any) or interest, if any, thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or Stated Maturity thereof (or, in the
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case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as applicable); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture or reduce the quorum or voting requirements of Section 14.04; or
(3) modify any of the provisions of this Section 9.02 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security 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 9.02, or the deletion of
this proviso, in accordance with the requirements of Section 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 9.03. 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 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
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 9.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture applicable to the Holders of Securities of one or more
series pursuant to Section 9.02, the Company shall transmit to such Holders a
notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities, any appurtenant coupons and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 10.05 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
3.01, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
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upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 10.05); provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all the presentations, surrenders, notices and demands, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Bearer Securities of that series pursuant to Section 10.05) at the place
specified for the purpose pursuant to Section 3.01(5).
No payment of principal of (or premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and interest
denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at
all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
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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 10.03. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company, a Subsidiary or any of their respective Affiliates shall at
any time act as the Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, 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 premium, if any) and interest, if any, so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing 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 premium, if
any) or interest, if any, on any Securities of that series, and any appurtenant
coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such
amount so becoming due, 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 in writing 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 10.03, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the
Trustee notice in wrting of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal
(and premium, if any) or interest, if any, on the Securities of such series and
(iii) 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 any appurtenant coupons, 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 with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent, in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, 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.
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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 premium, if any)
or interest, if any, on any Security of any series or any related coupons and
remaining unclaimed for two years after such principal (or 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, 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 free of the trust formerly impressed
upon it.
SECTION 10.04. Purchase of Securities by Company or Subsidiary.
-----------------------------------------------
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 10.05. Payment of Additional Amounts.
-----------------------------
If the Securities of a series provide for the payment of amounts in addition
to principal, premium or interest ("additonal amounts"), the Company will pay to
the Holder of any security of any such series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on, or in
respect of, any Security of any series, any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section 10.05 to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest, if any, if there has been any
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change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest, if any, on the
Securities of that series shall be made to Holders of Securities of that series
or the related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts, if
any, required by the terms of such Securities and the first paragraph of this
Section 10.05. The Company covenants to indemnity the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 10.05.
SECTION 10.06. Statement by Officers as to Default.
-----------------------------------
(a) Each obligor upon the Securities (including 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, a certificate from each such obligor's principal
executive officer, principal financial officer or principal accounting officer,
stating that a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision and whether or not to the best knowledge of the
signer(s) thereof such obligor is in default in the performance and observance
of any of the terms, conditions and covenants of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if such
obligor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default, an Officers' Certificate specifying such Event of Default,
the period of existence thereof and what action the Company is taking or
proposes to take with respect thereto.
SECTION 10.07. 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 legal existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
The Company may reserve the right to redeem and pay before Stated Maturity
all or any part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by provision
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therefor in the form of Security for such series established and approved
pursuant to Article Two and Article Three and on such terms as are specified in
such form or in the indenture supplemental hereto provided in Section 3.01.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities redeemable at the
election of the Company shall be evidenced by or pursuant to authority granted
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 or pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of like tenor and terms of any series (a
"Tranche") 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 Tranche not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
include provision for the election for redemption of portions of the principal
of Securities of such Tranche of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be selected
by the Company.
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.
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SECTION 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(6) that the redemption is on account of a sinking fund, purchase fund
or other obligation, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at such
place or places outside of the United States, except as otherwise specified
in Section 10.02 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
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.
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Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which such Securities are payable sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided that such amount shall be so deposited with the Trustee or Paying Agent
in time for the Trustee or the Paying Agent, as the case may be, to pay such
Redemption Price in accordance with its normal procedures.
SECTION 11.06. 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) 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; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office
or agency located outside the United States except as otherwise provided in
Section 10.02) and provided further, that, unless otherwise specified in Section
3.01, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Registered Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.02.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and Stated Maturity and of like tenor and terms, 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 12.01. 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 3.01 for Securities of such series.
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SECTION 12.02. Provisions with Respect to any Sinking Funds.
--------------------------------------------
Unless the form or terms of any series of Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking fund
payment with respect to such series of Securities in cash, the Company may at
its option (1) deliver to the Trustee for cancellation any Securities of such
series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
(including by way of optional redemption (pursuant to the sinking fund or
otherwise) but not by way of mandatory sinking fund redemption) and theretofore
delivered to the Trustee for cancellation, and if it does so then (i) Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company, and (B) such Securities, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
acquired by the Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no Event of
Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be cancelled by
the Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with respect
to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 11.06. The Trustee shall select, in the manner provided in
Section 11.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 11.04 (and with the
effect provided in Section 11.06) for the redemption of Securities in part at
the option of the Company. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Securities of such series shall be added to
the next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.02. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before such sinking fund Redemption Date provided with respect to
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Securities of any series, the Company shall deposit with the Trustee cash in a
sum equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 12.02; provided that such cash shall be so deposited with the Trustee in
time for the Trustee to make the payment of such accrued interest in accordance
with its normal procedures.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
SECTION 13.02. Repayment of Securities.
-----------------------
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 13.03. Exercise of Option; Notice.
--------------------------
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; provided, however, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 10.02. Such notice, which shall be irrevocable,
shall specify the principal amount of such Security to be repaid, which shall be
equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denominations of the
Security or Securities of the same series to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 10.02.
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The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
provided, however, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 13.04. Election of Repayment by Remarketing Entities.
---------------------------------------------
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Date, Securities of such
series from the Holders thereof who give notice and surrender their Securities
in accordance with Section 13.03.
SECTION 13.05. Securities Payable on the Repayment Date.
----------------------------------------
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 13.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for which Meetings May be Called.
-----------------------------------------
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 14.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities for any purpose
specified in Section 14.01, to be held at such time and at such place in the
Borough of Manhattan, the City of New York, the City of San Francisco,
California or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 no more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 14.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, the City
of New York, the City of San Francisco, California or in London for such
meeting and may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 14.03. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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SECTION 14.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of this reconvening of any
adjourned meeting shall be given as provided in Section 14.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 14.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture, the
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Company may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.04 and the appointment of any proxy
shall be proved in the manner specified in Section 1.04 or, in the case of
Bearer Securities, by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
14.02(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairperson. A permanent chairperson and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1.00 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at a meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 14.06. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of vote who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
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knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if
applicable, Section 14.01. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option by Board Resolution at any time, to
have either Section 15.02 or Section 15.03 applied to the Outstanding Securities
of any series designated pursuant to Section 3.01 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 15.02. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.02 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 15.04 are satisfied (hereinafter called "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
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 15.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities of such series when payments are due, (2) the Company's
obligations with respect to the Securities of such series under Sections 3.04,
3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
including, but not limited to, pursuant to Section 6.07 and (4) this Article
Fifteen. Subject to compliance with this Article Fifteen, the Company may
exercise its option provided in Section 15.01 to have this Section 15.02 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 15.01 to have Section 15.03 applied
to the Outstanding Securities of such series and any related coupons.
SECTION 15.03. Covenant Defeasance.
-------------------
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Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.03 applied to the Outstanding Securities of any Defeasible
Series and any related coupons, (1) the Company shall be released from its
obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event
specified in Sections 5.01(3), 5.01(4) (with respect to any of Sections 8.01 and
10.07) and 5.01(8) shall be deemed not to be or result in an Event of Default,
in each case with respect to the Outstanding Securities of such series as
provided in this Section 15.03 on and after the date the conditions set forth in
Section 15.04 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the case
of Section 5.01(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 15.02
or Section 15.03 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount (in such
Currency in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity), (B) U.S. Government
Obligations that through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, 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 any such other qualifying Trustee)
to pay and discharge, the principal of (and premium, if any) and interest,
if any, on the Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities of such series.
(2) In the case of an election under Section 15.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
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if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 15.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize gain
or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.01 (6) and (7), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day), .
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 15.05. 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 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
15.05 and Section 15.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 15.04 in respect of the
Securities of any Defeasible Series and any related coupons shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
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Securities and the related coupons, if any, of such series and this Indenture,
to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of Securities of such series, of all sums due and to become due thereon
in respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 15.04(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 15.04(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 15.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen 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 15.04 with respect to Securities of any Defeasible Series that, 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 that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 15.06. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 15.05 with respect to Securities of such series in
accordance with this Article Fifteen; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any, on
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any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to recover such payment from the money so held in trust.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 16.01. Conversion Privilege and Conversion Price.
-----------------------------------------
If the Securities of a series are convertible, which shall be specified in
the manner contemplated in Section 3.01, and upon compliance with the provisions
of this Article, at the option of the Holder thereof, any Security or any
portion of the principal amount thereof may be converted into fully paid and
nonassessable shares of Common Stock of the Company, at the conversion price in
effect at the time of conversion. The periods within which or the dates on
which, the prices at which and the terms and conditions upon which Securities
may be so converted shall be specified in the manner contemplated by Section
3.01. In case a Security or portion thereof is called for redemption or is
repurchased, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Redemption Date or the
repurchase date, unless the Company defaults in making the payment due upon
redemption or repurchase.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) or (5) of Section
16.04, the Holder of each Security, upon the conversion thereof pursuant to this
Article subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) or (5) of Section 16.04, shall also be
entitled to receive for each share of Common Stock into which such Security is
converted, the portion of the evidences of indebtedness, shares of Capital
Stock, cash and assets so distributed applicable to one share of Common Stock,
provided that, at the election of the Company (whose election shall be evidenced
by a Board Resolution) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such distribution not
consisting of cash or securities of the Company, pay such Holder an amount in
cash equal to the fair market value thereof (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution). If any conversion of a Security described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock that the Holder of the Security so converted is entitled
to receive in accordance with the immediately preceding sentence, the Company
may elect (such election to be evidenced by a Board Resolution) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of Capital
Stock, cash or assets to which such Holder is so entitled, provided that such
due bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then traded and
(ii) requires payment or delivery of such evidences of indebtedness, shares of
Capital Stock, cash or assets no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
SECTION 16.02. Exercise of Conversion Privilege.
--------------------------------
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In order to exercise the conversion privilege referred to in this Article
16, the Holder of any Security to be converted shall surrender such Security,
duly endorsed or assigned to the Company or in blank in the case of Registered
Securities, together in the case of Bearer Securities with all matured coupons
and any matured coupons in default appertaining thereto, at any office or agency
of the Company maintained for that purpose pursuant to Section 10.02,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Registered Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Registered Securities or portions thereof that have been called for
redemption, or are to be repurchased, on such Interest Payment Date or a
Redemption Date or a repurchase date within the period beginning on such Regular
Record Date and ending on such Interest Payment Date) be accompanied by payment
by wire transfer or certified check or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Registered Security then being converted. Except as
provided in the preceding sentence and subject to the last paragraph of Section
3.07, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the securities surrendered for conversion or on account
of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person or persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 16.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with any
coupons appertaining thereto, if applicable.
SECTION 16.03. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or, in the case of Registered Securities,
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or
Securities (or, in the case of Registered Securities, specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the Closing Price at the close of
business on the date of conversion.
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SECTION 16.04. Adjustment of Conversion Price.
------------------------------
(1) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in stock or shall pay or make a dividend or
other distribution on any other class of Capital Stock of the Company which
dividend or distribution includes Common Stock, the conversion price in effect
at the opening of business on the day following the day fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case
the Company shall pay or make a dividend or other distribution on its Common
Stock consisting exclusively of, or shall otherwise issue to all holders of its
Common Stock, rights or warrants entitling the holders thereof to subscribe for
or purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In the event that outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in the event that outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the conversion price
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in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4), in the event that
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class of Capital
Stock, cash or assets (including securities, but excluding any rights or
warrants referred to in paragraph (2) of this Section, excluding any dividend or
distribution paid exclusively in cash and excluding any dividend or distribution
referred to in paragraph (1) of this section), the conversion price shall be
reduced to be equal to the price determined by multiplying the conversion price
in effect immediately prior to the effectiveness of the conversion price
reduction contemplated by this paragraph (4) by a fraction of which the
numerator shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date of such
effectiveness less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution), on the date of such effectiveness of the portion of the
evidences of indebtedness, shares of Capital Stock, cash and assets so
distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the later of (a) the date fixed for the payment of such distribution
and (b) the date 20 days after the notice relating to such distribution is given
pursuant to Section 16.06(a) (such later date of (a) and (b) being referred to
as the "Reference Date"). If the Board of Directors determines the fair market
value of any distribution for purposes of this paragraph (4) by reference to the
actual or when issued trading market for any securities comprising such
distribution, it must in doing so consider the prices in such market over the
same period used in computing the current market price per share pursuant to
paragraph (8) of this Section. For purposes of this paragraph (4), any dividend
or distribution that includes shares of Common Stock, rights or warrants to
subscribe for or purchase shares of Common Stock or other securities convertible
into or exchangeable for shares of Common Stock shall be deemed instead to be
(a) a dividend or distribution of the evidences of indebtedness, cash, assets or
shares of Capital Stock other than such shares of Common Stock, such rights or
warrants or such other convertible or exchangeable securities (making any
conversion price reduction subject to this paragraph (4)), immediately followed
by (b) in the case of such shares of Common Stock or such rights or warrants, a
dividend or distribution thereof (making any further conversion price reduction
subject to paragraph (1) or (2) of this Section, except (i) the Reference Date
of such dividend or distribution as defined in this paragraph (4) shall be
substituted for "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such determination"
within the meaning of paragraph (1) of this Section) or (c) in the case of such
other convertible or exchangeable securities, a dividend or distribution of such
number of shares of Common Stock as would then be issuable upon the conversion
or exchange thereof, whether or not the conversion or exchange of such
securities is subject to any conditions (making any further conversion price
reduction subject to paragraph (1) of this Section, except (i) the Reference
Date of such dividend or distribution as defined in this paragraph (4) shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such determination" and (ii)
the shares deemed to constitute such dividend or distribution shall not be
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deemed "outstanding at the close of business on the date fixed for such
determination", each within the meaning of paragraph (1) of this Section).
(5) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed as part of a distribution referred to in paragraph (4) of this
Section) in an aggregate amount that, together with (i) the aggregate amount of
any other distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution and
in respect of which no conversion price adjustment pursuant to this paragraph
(5) or paragraph (6) below has been made and (ii) the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of any
other consideration payable in respect of any tender offer by the Company or a
subsidiary for all or any portion of the Company's Common Stock concluded within
the 12 months preceding the date of payment of such distribution and in respect
of which no conversion price adjustment pursuant to paragraph (8) of this
Section has been made, exceeds 10% of the product of the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for stockholders entitled to receive such
distribution, times the number of shares of Common Stock outstanding on such
date, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately prior
to the effectiveness of the conversion price reduction contemplated by this
paragraph (5) by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date of such effectiveness less the amount of cash so
distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the later of
(a) the day following the date fixed for the payment of such distribution and
(b) the date 20 days after the notice relating to such distribution is given
pursuant to Section 16.06 (if such notice is required to be given).
(6) In the event that a tender offer made by the Company or any Subsidiary
for all or any portion of the Company's Common Stock shall expire and such
tender offer shall involve an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) on the last time (the
"Expiration Time") tenders may be made pursuant to such tender offer (as it may
be amended) that, together with (i) the aggregate amount of cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution), as of the expiration of such
tender offer, of any other consideration payable in respect of any tender offer
by the Company or a Subsidiary for all or any portion of the Company's Common
Stock expiring within the 12 months preceding the expiration of such tender
offer and in respect of which no conversion price adjustment pursuant to this
paragraph (6) or paragraph (5) above has been made and (ii) the aggregate amount
of any distributions to all holders of the Company's Common Stock made
exclusively in cash within the 12 months preceding the expiration of such tender
offer and in respect of which no conversion price adjustment pursuant to
paragraph (5) of this Section has been made exceeds 5% of the product of the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock at the Expiration Time multiplied by the number of
- 91 -
<PAGE>
shares of Common Stock outstanding (including any tendered shares) at the
Expiration Time, the conversion price shall be reduced so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be (i) the product of the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock at the Expiration
Time multiplied by the number of shares of Common Stock outstanding (including
any tendered shares) at the Expiration Time minus (ii) the fair market value
(determined as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to
as the "Purchased Shares") and the denominator shall be the product of (i) such
current market price per share at the Expiration Time multiplied by (ii) such
number of outstanding shares at the Expiration Time less the number of Purchased
Shares, such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. No such adjustment shall be
made in the event of any purchase pursuant to Rule 10b-18 under the Exchange
Act.
(7) The reclassification of Common Stock into any security or securities
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 16.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be the
"Reference Date" within the meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective", or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section). Rights
or warrants issued by the Company to all holders of its Common Stock entitling
the holders thereof to subscribe for or purchase shares of Common Stock or
preferred stock of the Company, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuance of Common Stock, in the case of
each of clauses (i) through (iii), until the occurrence of a specified event or
events ("Trigger Event"), shall for purposes of this Section 16.04 not be deemed
issued and the distribution thereof not be deemed made or paid until the
occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and paragraphs
(2), (4) and (5) of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the Closing Prices for
the five consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before, and ending not later than, the date in question;
provided, that such market price shall be appropriately adjusted by the Board
(which adjustment shall be conclusive and shall be evidenced by a Board
Resolution) to take into account the occurrence, during the period commencing on
the first of such Trading Days during such five Trading Day period and ending on
the date in question, of any event that requires an adjustment in the conversion
price under this Section 16.04. For the purpose of any computation under
paragraph (6) of this Section, the current market price per share of Common
- 92 -
<PAGE>
Stock on any date shall be deemed to be the average of the daily Closing Prices
for the five consecutive Trading Days selected by the Company commencing on or
after the latest of the date (any such date, the "Commencement Date") (i) 20
Trading Days before the date in question, (ii) of commencement of the tender
offer requiring such computation and (iii) of the last amendment, if any, of
such tender offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the Expiration Time of such tender offer; provided, that such market
price shall be appropriately adjusted by the Board (which adjustment shall be
conclusive and shall be evidenced by a Board Resolution) to take into account
the occurrence, during the period commencing on the first of such Trading Days
during such five Trading Day period and ending on the date in question, of any
event that requires an adjustment in the conversion price under this Section
16.04.
(9) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this paragraph (10) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
- 93 -
<PAGE>
(11) Notwithstanding any other provision of this Section 16.04, no
adjustment to the conversion price shall (unless permitted by New Jersey law)
reduce the conversion price below the then par value per share of the Common
Stock, and any such purported adjustment shall instead reduce the conversion
price to such par value. The Company hereby covenants not to take any action
that would or does result in any adjustment in the conversion price that, if
made without giving effect to the previous sentence, would cause the conversion
price to be less than the then par value per share of the Common Stock, unless
such action is permitted by New Jersey law.
(12) If all of the shares of the Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options have been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
SECTION 16.05. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion prices are adjusted as herein provided and at such
other times as the Trustee shall request:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 16.04 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be delivered to the Trustee
and filed at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.02. The certificate shall be
conclusive evidence that the adjustment is correct. The Trustee shall not
be under any duty or responsibility with respect to any such certificate
except to exhibit the same to any Holder desiring inspection thereof, and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and, when the conversion price is adjusted, as soon as practicable after it
is required, the Company shall cause such notice to be mailed to all Holders
of Registered Securities at their last address as they shall appear in the
Security Register.
SECTION 16.06 Notice of Certain Corporate Action.
----------------------------------
In the event:
(a) that the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(b) that the Company shall authorize the granting to the holders of
its Common Stock generally of rights or warrants to subscribe for or
purchase any shares of Capital Stock of any class or of any other rights; or
(c) of the occurrence of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of the outstanding
shares of Common Stock), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
- 94 -
<PAGE>
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) that the Company or any Subsidiary shall commence a tender offer
for all or a portion of the Company's outstanding shares of Common Stock (or
shall amend any such tender offer);
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 10.02, and shall cause to be mailed to all Holders of Registered
Securities at their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on which such
tender offer commenced, the date on which such tender offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto).
SECTION 16.07. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
SECTION 16.08. Taxes on Conversions.
--------------------
The Company will pay any and all taxes, other than any franchise or income
taxes, that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 16.09. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock that may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable
- 95 -
<PAGE>
and, except as provided in Section 16.08, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
SECTION 16.10. Cancellation of Converted Securities, etc.
------------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee to
be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.10.
SECTION 16.11. Provision in the Case of Consolidation, Merger or
-------------------------------------------------
Sales of Assets.
---------------
In the event of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in the event of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in the event of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, during the period such Security shall be convertible as
specified in Section 16.01, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock of the Company failed to exercise its rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of Common
Stock in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section, the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).
Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.12. Trustee's Adjustment Disclaimer.
-------------------------------
The Trustee has no duty to determine when an adjustment under this Article
16 should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 16.11 need
be entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure
to comply with the Article 16.
- 96 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BERGEN BRUNSWIG CORPORATION
By___________________________________
Attest
______________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA, as Trustee
By___________________________________
Attest
______________________________
- 97 -
<PAGE>
STATE OF CALIFORNIA
COUNTY OF ORANGE
On the _____ day of _____________, 1996 before me personally appeared
______________ to me known, who, being by me duly sworn, did depose and say that
he resides at _______________________________, California and that he is
______________ of Bergen Brunswig Corporation, one of the corporations described
in and which executed the foregoing instrument; and that he signed his name
thereto by authority of the board of directors of Bergen Brunswig Corporation.
________________________________
Notary Public
________________________________
(Notarial Seal)
- 98 -
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the _____ day of _____________, 1996 before me personally came
_____________ to me known, who, being by me duly sworn, did depose and say that
he resides at _______________________________, California and that he is
____________ of Chemical Trust Company of California, one of the parties
described in and which executed the above instrument; and that he signed his
name thereto by authority of the board of directors of Chemical Trust Company of
California.
________________________________
Notary Public
________________________________
(Notarial Seal)
- 99 -
<PAGE>
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States Person(s) that are
(a) foreign branches of United States financial Institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.16512(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Bergen Brunswig Corporation, or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
A-1-1
<PAGE>
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] ______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, 19 __
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
_______________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, [U.S.$]_________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Bergen Brunswig
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163.5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
A-2-1
<PAGE>
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedal S.A.]
By_______________________________
A-2-2
EXHIBIT 4.5
BERGEN BRUNSWIG CORPORATION
TO
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
___________________________
Indenture
Dated as of January 1, 1996
___________________________
Subordinated Debt Securities
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310 (a)(1) ............................................... 6.09
(a)(2) ............................................... 6.09
(a)(3) ............................................... N.A.
(a)(4) ............................................... N.A.
(a)(5) ............................................... 6.09
(b) ............................................... 6.08
(c) ............................................... N.A.
311 (a) ............................................... 6.13
(b) ............................................... 6.13
(c) ............................................... N.A.
312 (a) ............................................... 7.01, 7.02
(b) ............................................... 7.02
(c) ............................................... 7.02
313 (a) ............................................... 7.03
(b) ............................................... 7.03
(c) ............................................... 7.03
(d) ............................................... 7.03
314 (a) ............................................... 7.04, 10.06
(b) ............................................... N.A.
(c)(1) ............................................... 1.02
(c)(2) ............................................... 1.02
(c)(3) ............................................... N.A.
(d) ............................................... N.A.
(e) ............................................... 1.02
315 (a) ............................................... 6.01 (a)
(b) ............................................... 6.02, 7.03
(c) ............................................... 6.01 (b)
(d) ............................................... 6.01 (c)
(e) ............................................... 5.14
316 (a)(last sentence) ..................................... 1.01("outstanding")
(a)(1)(A)............................................... 5.12
(a)(1)(B)............................................... 5.13
(a)(2) ............................................... N.A.
(b) ............................................... 5.08
(c) ............................................... 1.04
317 (a)(1) ............................................... 5.03
(a)(2) ............................................... 5.04
(b) ............................................... 10.03
318 (a) ............................................... 1.07
N.A. means Not Applicable.
- ----------------------
<FN>
1 This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
</TABLE>
- i -
<PAGE>
TABLE OF CONTENTS (1)
PAGE
----
PARTIES................................................................. 1
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01............................................................ 1
Definitions:
Act................................................................. 2
Affiliate........................................................... 2
Authenticating Agent................................................ 2
Authorized Newspaper................................................ 2
Bearer Security..................................................... 2
Board of Directors; Board........................................... 3
Board Resolution.................................................... 3
Business Day........................................................ 3
Capital Stock....................................................... 3
CEDEL; CEDEL SA..................................................... 3
Closing Price....................................................... 3
Commencement Date................................................... 3
Commission.......................................................... 3
Common Stock........................................................ 4
Company............................................................. 4
Company Request; Company Order...................................... 4
Component Currency.................................................. 4
Conversion Date..................................................... 4
Conversion Event.................................................... 4
Corporate Trust Office.............................................. 4
corporation......................................................... 4
coupon.............................................................. 4
Covenant Defeasance................................................. 4
Currency; currency.................................................. 4
Defaulted Interest.................................................. 4
Defeasance.......................................................... 4
Defeasible Series................................................... 4
Depositary.......................................................... 5
Designated Currency................................................. 5
Dollar; $........................................................... 5
Dollar Equivalent................................................... 5
ECU................................................................. 5
Election Date....................................................... 5
Euroclear........................................................... 5
European Communities................................................ 5
_____________________
[FN]
1 This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
- ii -
<PAGE>
European Monetary System............................................ 5
Event of Default.................................................... 5
Exchange Act........................................................ 5
Exchange Date....................................................... 5
Exchange Rate Agent................................................. 5
Exchange Rate Officer's Certificate................................. 5
Expiration Time..................................................... 6
Foreign Currency.................................................... 6
Global Security..................................................... 6
Holder.............................................................. 6
Indenture........................................................... 6
Indexed Security.................................................... 6
interest............................................................ 6
Interest Payment Date............................................... 6
Market Exchange Rate................................................ 6
Maturity............................................................ 7
non-electing share.................................................. 7
Notice of Default................................................... 7
Officers' Certificate............................................... 7
Opinion of Counsel.................................................. 7
Original Issue Discount Security.................................... 7
Outstanding......................................................... 7
Paying Agent........................................................ 9
Person.............................................................. 9
Place of Payment.................................................... 9
Predecessor Security................................................ 9
Purchased Shares.................................................... 9
Redemption Date..................................................... 9
Redemption Price.................................................... 9
Reference Date...................................................... 9
Registered Security................................................. 9
Regular Record Date................................................. 9
Remarketing Entity.................................................. 9
Repayment Date...................................................... 9
Repayment Price..................................................... 9
Responsible Officer................................................. 10
Securities.......................................................... 10
Security Register; Security Registrar............................... 10
Senior Indebtedness................................................. 10
Senior Indebtedness Default......................................... 10
Special Record Date................................................. 10
Specified Amount.................................................... 10
Stated Maturity..................................................... 10
Subsidiary.......................................................... 11
Trading Day......................................................... 11
Trigger Event....................................................... 11
Trustee............................................................. 11
Trust Indenture Act; TIA............................................ 11
United States....................................................... 11
United States Alien................................................. 11
U.S. Government Obligations......................................... 11
Valuation Date...................................................... 12
Vice President...................................................... 12
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SECTION 1.02. Compliance Certificates and Opinions..................... 12
SECTION 1.03. Form of Documents Delivered to Trustee................... 13
SECTION 1.04. Acts of Holders; Record Dates............................ 13
SECTION 1.05. Notices, Etc., to Trustee and Company.................... 15
SECTION 1.06. Notice to Holders; Waiver................................ 15
SECTION 1.07. Conflict with Trust Indenture Act........................ 17
SECTION 1.08. Effect of Headings and Table of Contents................. 17
SECTION 1.09. Successors and Assigns................................... 17
SECTION 1.10. Separability Clause...................................... 17
SECTION 1.11. Benefits of Indenture.................................... 17
SECTION 1.12. Governing Law............................................ 17
SECTION 1.13. Legal Holidays........................................... 17
SECTION 1.14. Counterparts............................................. 18
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 18
SECTION 2.02. Form of Trustee's Certificate of Authentication.......... 18
SECTION 2.03. Securities Issuable in Global Form....................... 19
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series..................... 20
SECTION 3.02. Denominations............................................ 23
SECTION 3.03. Execution, Authentication, Delivery and Dating........... 23
SECTION 3.04. Temporary Securities..................................... 26
SECTION 3.05. Registration; Registration of Transfer and Exchange...... 28
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......... 32
SECTION 3.07. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset........................................... 33
SECTION 3.08. Optional Extension of Maturity........................... 36
SECTION 3.09. Persons Deemed Owners.................................... 37
SECTION 3.10. Cancellation............................................. 37
SECTION 3.11. Computation of Interest.................................. 38
SECTION 3.12. Currency and Manner of Payments in Respect of Securities. 38
SECTION 3.13. Appointment and Resignation of Successor Exchange
Rate Agent............................................... 41
SECTION 3.14. CUSIP Numbers............................................ 42
SECTION 3.15. Certification by a Person Entitled to Delivery of
Bearer Security.......................................... 42
SECTION 3.16. Judgments................................................ 42
SECTION 3.17. Medium Term Securities................................... 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 4.01. Satisfaction and Discharge of Indenture.................. 43
SECTION 4.02. Application of Trust Money............................... 45
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default........................................ 45
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....... 47
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................... 48
SECTION 5.04. Trustee May File Proofs of Claim......................... 49
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................... 50
SECTION 5.06. Application of Money Collected........................... 50
SECTION 5.07. Limitation on Suits...................................... 51
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 51
SECTION 5.09. Restoration of Rights and Remedies....................... 52
SECTION 5.10. Rights and Remedies Cumulative........................... 52
SECTION 5.11. Delay or Omission Not Waiver............................. 52
SECTION 5.12. Control by Holders....................................... 52
SECTION 5.13. Waiver of Past Defaults.................................. 53
SECTION 5.14. Undertaking for Costs.................................... 53
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.................. 53
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities...................... 54
SECTION 6.02. Notice of Defaults....................................... 55
SECTION 6.03. Certain Rights of Trustee................................ 55
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities... 57
SECTION 6.05. May Hold Securities...................................... 57
SECTION 6.06. Money Held in Trust...................................... 57
SECTION 6.07. Compensation and Reimbursement........................... 57
SECTION 6.08. Disqualification; Conflicting Interests.................. 58
SECTION 6.09. Corporate Trustee Required; Eligibility.................. 59
SECTION 6.10. Resignation and Removal; Appointment of Successor........ 60
SECTION 6.11. Acceptance of Appointment by Successor................... 61
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SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.............................................. 62
SECTION 6.13. Preferential Collection of Claims Against Company........ 63
SECTION 6.14. Appointment of Authenticating Agent...................... 63
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders............................................... 64
SECTION 7.02. Preservation of Information; Communications to Holders... 65
SECTION 7.03. Reports by Trustee....................................... 65
SECTION 7.04. Reports by Company....................................... 66
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms..... 66
SECTION 8.02. Successor Person Substituted............................. 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders....... 67
SECTION 9.02. Supplemental Indentures with Consent of Holders.......... 68
SECTION 9.03. Execution of Supplemental Indentures..................... 70
SECTION 9.04. Effect of Supplemental Indentures........................ 70
SECTION 9.05. Conformity with Trust Indenture Act...................... 70
SECTION 9.06. Reference in Securities to Supplemental Indentures....... 70
SECTION 9.07 Notice of Supplemental Indenture......................... 70
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest............... 71
SECTION 10.02. Maintenance of Office or Agency.......................... 71
SECTION 10.03. Money for Securities Payments to Be Held in Trust........ 72
SECTION 10.04. Purchase of Securities by Company or Subsidiary.......... 73
SECTION 10.05. Payment of Additional Amounts............................ 73
SECTION 10.06. Statement by Officers as to Default...................... 74
SECTION 10.07. Existence................................................ 75
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article................................. 75
SECTION 11.02. Election to Redeem; Notice to Trustee.................... 75
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........ 75
SECTION 11.04. Notice of Redemption..................................... 76
SECTION 11.05. Deposit of Redemption Price.............................. 77
SECTION 11.06. Securities Payable on Redemption Date.................... 77
SECTION 11.07. Securities Redeemed in Part.............................. 78
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article................................. 78
SECTION 12.02. Provisions with Respect to any Sinking Funds............. 79
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.01. Applicability of Article................................. 80
SECTION 13.02. Repayment of Securities.................................. 80
SECTION 13.03. Exercise of Option; Notice............................... 80
SECTION 13.04. Election of Repayment by Remarketing Entities............ 81
SECTION 13.05. Securities Payable on the Repayment Date................. 81
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for Which Meetings May Be Called................ 82
SECTION 14.02. Call, Notice and Place of Meetings....................... 82
SECTION 14.03. Persons Entitled to Vote at Meetings..................... 82
SECTION 14.04. Quorum; Action........................................... 83
SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings.............................................. 83
SECTION 14.06. Counting Votes and Recording Action of Meetings.......... 84
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ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or
Covenant Defeasance...................................... 85
SECTION 15.02. Defeasance and Discharge................................. 85
SECTION 15.03. Covenant Defeasance...................................... 86
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.......... 86
SECTION 15.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............ 87
SECTION 15.06. Reinstatement............................................ 88
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness............ 89
SECTION 16.02 Payment over of Proceeds upon Dissolution, Etc........... 89
SECTION 16.03 Default on Senior Indebtedness........................... 91
SECTION 16.04 Prior Payment to Senior Indebtness Upon
Acceleration of Securities............................... 91
SECTION 16.05 Payment Permitted if No Default.......................... 92
SECTION 16.06 Subrogation to Rights of Holders of Senior Indebtedness.. 92
SECTION 16.07 Provisions Solely to Define Relative Rights.............. 93
SECTION 16.08 Trustee to Effectuate Subordination...................... 93
SECTION 16.09 No Waiver of Subordination Provisions.................... 93
SECTION 16.10 Notice to Trustee........................................ 94
SECTION 16.11 Reliance on Judicial Order or Certificate of
Liquidating Agent........................................ 95
SECTION 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness. 95
SECTION 16.13 Rights of Trustee as Holders of Senior Indebtedness;
Preservation of Trustee's Rights......................... 95
SECTION 16.14 Article Sixteen Applicable to Paying Agents.............. 96
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 17.01 Conversion Privilege and Conversion Price................ 96
SECTION 17.02 Exercise of Conversion Privilege......................... 97
SECTION 17.03 Fractions of Shares...................................... 98
SECTION 17.04 Adjustment of Conversion Price........................... 98
SECTION 17.05 Notice of Adjustments of Conversion Price................ 103
SECTION 17.06 Notice of Certain Corporate Action....................... 103
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SECTION 17.07 Company to Reserve Common Stock.......................... 104
SECTION 17.08 Taxes on Conversions..................................... 104
SECTION 17.09 Covenant as to Common Stock.............................. 104
SECTION 17.10 Cancellation of Converted Securities, etc................ 105
SECTION 17.11 Provision in the Case of Consolidation,
Merger or Sales of Assets................................ 105
SECTION 17.12 Trustee's Adjustment Disclaimer.......................... 105
TESTIMONIUM............................................................. 106
SIGNATURES AND SEALS.................................................... 106
ACKNOWLEDGMENTS......................................................... 107
FORMS OF CERTIFICATION.................................................. A-1-1
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THIS INDENTURE, dated as of January 1, 1996, is between BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation having offices at 4000 Metropolitan Drive,
Orange, California 92668-3510 (herein called the "Company"), and CHEMICAL TRUST
COMPANY OF CALIFORNIA, 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 one or more series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture and of any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, or by
Commission rule or regulation under the TIA, either directly or by reference
therein, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05, have the meanings assigned to them
therein; the terms "cash transaction" and "self-liquidating" paper, as used
in TIA Section 311, shall have the meanings assigned to them in the rules of
the Commission adopted under the TIA; and the following TIA terms used in
this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means the Holder;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain other terms are defined elsewhere herein.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
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"Bearer Security" means any Security established pursuant to Section 2.01
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee of such board or any committee of
officers of the Company acting pursuant to authority granted by such board or
any committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board of Directors or
the Company or any officer or employee of the Company authorized to take such
action by a Board Resolution.
"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.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Closing Price" for any day means the last reported sale price of the Common
Stock regular way on such day or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular way
on such day, in either case on the New York Exchange or, if the Common Stock is
not listed or admitted to trading on such exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the NASDAQ National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the- counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. If the Common Stock
is not listed or admitted to trading on any national securities exchange, quoted
on such National Market System or listed in any list of bid and asked prices in
the over-the-counter market, "Closing Price" shall mean the fair market value of
the Common Stock as determined in good faith by the Board of Directors.
"Commencement Date" shall have the meaning specified in Section 17.04(8).
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"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.
"Common Stock" shall mean the Class A Common Stock, par value $1.50 per
share of the Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which such Class A Common Stock
shall be reclassified or changed.
"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. The foregoing sentence shall likewise apply to any
subsequent 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.
"Component Currency" has the meaning specified in Section 3.12(h).
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee in San Francisco,
California at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 50 California
Street, San Francisco, California 94111.
"corporation" means a corporation, association, company, joint stock company
or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 15.03.
"Currency" or "currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 15.02 and "Covenant
Defeasance" has the meaning specified in Section 15.03.
"Defeasible Series" has the meaning specified in Section 15.01.
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"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 by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 3.16.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent" has the meanings specified in paragraphs (f) and (g) of
Section 3.12.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.12(h).
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Communities.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 3.04(b).
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate", means a certificate setting forth the
applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU and other
composite Currency or Foreign Currency, and signed by the Chairman of the Board,
the President, any Vice President, the Treasurer or any Assistant Treasurer of
the Company or the Exchange Rate Agent appointed pursuant to Section 3.01, and
delivered to the Trustee.
"Expiration Time" shall have the meaning specified in Section 17.04(6).
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"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Global Security" means a Security 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, in accordance
with Section 3.03.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 3.01 hereof.
"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, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 10.05, includes such additional amounts.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a Currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case as
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determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or currency
unit in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether on a Repayment Date, at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"non-electing share" shall have the meaning specified in Section 17.11.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4) or 5.01(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Company, and
delivered to the Trustee, which shall comply with Section 1.02 to the extent
applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, and who shall be acceptable to the
Trustee such acceptance, which shall comply with Section 1.02 to the extent
applicable.
"Original Issue Discount Security" means any (i) 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 5.02 and
(ii) other Security deemed an original issue discount security for United
States federal income tax purposes.
"Outstanding", when used with respect to Securities of a particular series,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
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(2) such 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 in accordance with Section 4.01; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) such Securities as to which Defeasance has been effected pursuant
to Section 15.02 or 15.03; and
(4) such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a Person in whose hands
such Securities are legal, valid and binding 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 or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, (B) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or in the case of
an Original Issue Discount Security or Indexed Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (A) above or (C) below, respectively) of such Security, (C) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 3.01, and (D) 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.
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<PAGE>
"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
Sections 3.01 and 10.02, or if no such place shall be specified, at the offices
of the Paying Agent.
"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 3.06 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.
"Purchased Shares" shall have the meaning specified in Section 17.04(6).
"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.
"Reference Date" shall have the meaning specified in Section 17.04(4).
"Registered Security", means any Security in the form of Registered
Securities established pursuant to Section 2.01 which is registered in the
Security Register.
"Regular Record Date", for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
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<PAGE>
"Responsible Officer", means the President or any Vice President, Assistant
Vice President or Trust Officer of the Trustee to whom any matter has been
referred because of such officer's knowledge 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 3.05.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any, on (a) all indebtedness of the Company (including indebtedness
of others guaranteed by the Company) (other than (w) the Securities, (x)
indebtedness outstanding under the indenture between the Company and Chemical
Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the
subordinated indentures between the Company and Chemical dated as of December 1,
1992 and January 1, 1996, respectively and (z) indebtedness as to which the
instruments creating or evidencing the same provide that such indebtedness is
not senior in right or payment to the Securities (collectively, the "Pari Passu
Debt")), whether outstanding on the date of this Indenture or hereafter created,
incurred or assumed, that is (i) for money borrowed or (ii) evidenced by a note
or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, except in the ordinary course of
business, (b) obligations of the Company as lessee under leases required to be
capitalized on the consolidated balance sheet of the Company under generally
accepted accounting principles or leases of property made as part of any sale
and leaseback transaction to which the Company is a party and (c) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligations; unless in any case referred to in clauses (a), (b) or (c) above, in
the instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Securities or to any
Pari Passu Debt.
"Senior Indebtedness Default" means the happening of an event of default
with respect to any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding, which, if occurring prior to the stated
maturity of such Senior Indebtedness, permits any holder thereof (immediately,
or with notice, lapse of time or both) to accelerate the maturity thereof.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Specified Amount" has the meaning specified in Section 3.12(h).
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<PAGE>
"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, as amended in
accordance with the terms hereof.
"Subsidiary" shall mean (i) a corporation, a majority 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, or (ii) a partnership in which the Company or a Subsidiary of the
Company is at the date of determination, a general partner of such partnership,
or (iii) any other Person (other than a corporation or a partnership) in which
the Company, a Subsidiary of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person. For the purposes of this definition, the term
"voting stock" means stock having ordinary voting power for the election of
directors irrespective of whether or not stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency.
"Trading Day" means, with respect to the Common Stock, each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on the exchange or market on which the Common Stock is traded.
"Trigger Event" shall have the meaning specified in Section 17.04(7).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 9.05;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" or "TIA" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended and the rules
and regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, 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
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specific payment of any interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of any interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Valuation Date" has the meaning specified in Section 3.12(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "Vice President".
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture (other than delivery of any
Security to the Trustee for authentication pursuant to Section 3.03), 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. In the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, however, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 10.06)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
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<PAGE>
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 1.04. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given 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. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 14.06.
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 to 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
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<PAGE>
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.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(d) 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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), if such record date is fixed by Board Resolution, such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. In the event no such record date is fixed
by Board Resolution, such record date shall be the later of 10 days prior to the
first solicitation of such action or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 7.01. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
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of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date, and that no such authorization, agreement or
consent may be amended, withdrawn or revoked once given by a Holder, unless the
Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents or
unless and to the extent required by law.
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 1.05. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, Attention: Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
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prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 3.01, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, in London, and, if a Responsible Officer has actual knowledge that the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if a Responsible
Officer has actual knowledge that the Securities of such series are then listed
on any other stock exchange outside the United States and such stock exchange
shall so require, in any other required city outside the United States or, if
not practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture or any Security 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.
SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
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If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA 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 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent, Security Registrar and Authenticating
Agent, the holders of Senior Indebtedness and the Holders of the Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York, but without
regard to principles of conflicts of law.
SECTION 1.13. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (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, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
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the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
SECTION 1.14. Counterparts.
------------
This Indenture 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 Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially such form (including
temporary or permanent global 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 market or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the form of Securities of any series or coupons 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 3.03 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on each Security shall be in
substantially the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
____________________________________
, as Trustee
By:_________________________________
(Authorized Officer)
SECTION 2.03. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.01, then, notwithstanding clause (9) of
Section 3.01 and the provisions of Section 3.02, any such Global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03(g) shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03(g).
Notwithstanding the provisions of Section 3.07, unless otherwise specified
as contemplated by Section 3.01, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
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Security in bearer form, Euroclear, CEDEL or such other Person as may be known
to the Trustee to be the bearer thereof.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be issued in one or
more series. The Securities shall not be superior in right of payment to any
securities issued pursuant to the subordinated indenture between the Company and
Chemical dated as of December 1, 1992 (the "1992 Subordinated Indenture") or to
any indebtedness defined in the 1992 Subordinated Indenture as "pari passu
debt". There shall be established in or pursuant to a Board Resolution, and,
subject to Section 3.03, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters in clauses (1)
and (2)), if so provided, may be determined by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series) and a
statement of the nature and extent of the subordination to which the
Securities are subject;
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.03 and except
for any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall accrue,
or the method by which such date or dates will be determined or extended,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Registered Security
on any Interest Payment Date, the circumstances, if any, in which the
Company may defer interest payments and the manner of computing interest if
other than as specified in Section 3.11;
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(5) the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 1.06 will be
published;
(6) the period or periods within which or the date or dates on 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;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 3.04 and 3.05,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall be
dated if other than the date of original issuance of the first Security of
such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 10.05;
(11) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which any Bearer Securities of
such series shall be issuable, if other than denominations of $5,000 and any
integral multiple thereof;
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(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or any
composite Currency or index, including but not limited to the ECU, and, if
any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) whether either, both or neither of Section 15.02 or Section 15.03
shall apply to the Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and premium, if any) and interest, if
any, on any Securities of the series shall be payable and the Currency or
Currencies, if any, in which payment of the principal of (and premium, if
any) or the interest, if any, on Registered Securities at the election of
each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the time and manner of determining the exchange rate between Currency or
Currencies in which such Securities are denominated or stated to be paid and
the Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of Section 3.12;
(15) if the amount of payments of principal of (or premium, if any) or
interest, if any, on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 3.04;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) 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
5.02;
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent; and
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(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest, if any, may be determined, with different dates on which such
interest may be payable and with different Redemption or Repayment Dates and may
be denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any 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 the series.
SECTION 3.02. Denominations.
-------------
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.01 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon, and shall be 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. Coupons shall bear
the facsimile signature of an authorized officer of the Company.
Securities or coupons 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
coupons or did not hold such offices at the date of such Securities or coupons.
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(b) 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, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 3.01, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent Global Bearer
Security, then, for purposes of this Section 3.03 and Section 3.04, the notation
of a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section
3.06, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. 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 2.01 and 3.01, 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 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except further as enforcement thereof may be limited
by (1) requirements that a claim with respect to any Securities denominated
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other than in Dollars (or a Foreign Currency or Currency unit judgment in
respect of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or Currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section 3.03, Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
be delivered by the Trustee to such Depositary or a customer or pursuant to such
Depositary's instructions.
(d) 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.
(e) Notwithstanding the provisions of Section 3.01 and this Section 3.03,
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 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to this Section 3.03 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.
(f) Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date contemplated by Section 3.01.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. 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 3.10, 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.
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(h) To the extent required by law, each Depositary designated pursuant to
Section 3.01 for a Global Security must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
(i) The Securities may contain such notations, legends or endorsements as
may be required by law, stock exchange rule or usage.
SECTION 3.04. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 3.04(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, 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 (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that unless otherwise contemplated or specified with respect
to any series of Securities pursuant to Section 3.01, no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further that a Bearer Security shall be delivered in exchange for a
Bearer Security only in compliance with the applicable conditions set forth in
Sections 3.03, 3.04 and 3.05. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
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Without unnecessary delay but in any event not later than the date specified
in, or determined pursuant to the terms of, any such temporary Global Security
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after the Exchange
Date, such temporary Global Security shall be surrendered by the Depositary to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary Global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary Global Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.01, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary Global Security, upon such presentation by
the Depositary, such temporary Global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form, set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to Section 3.01;
and provided further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary Global Security only in compliance with
the requirements of Section 3.03, 3.04 and 3.05, as applicable.
Unless otherwise specified in such temporary Global Security, the interest
of a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear,
CEDEL or another Person, as the case may be, to request such exchange on his
behalf and delivers to Euroclear, CEDEL or such other Person, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, any interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
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such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of Section 3.03(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 3.05. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 3.05
and Section 10.02, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 3.01, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust office, is initially appointed "Security
Registrar" for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
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Securities as contemplated by Section 3.01, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be issued
in exchange for Bearer Securities (except as otherwise specified as contemplated
by Section 3.01 with respect to a Bearer Security in global form) of the same
series, of any authorized denominations and of like tenor and terms and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor and terms after the close of business at such office or
agency of (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 3.01(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
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aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to each Person specified by such Depositary in writing a new
Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount
of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
(a) in definitive registered form in authorized denominations, if the Securities
of such series are issuable as Registered Securities, (b) in definitive bearer
form in authorized denominations, with coupons attached, if the Securities of
such series are issuable as Bearer Securities or (c) as either Registered or
Bearer Securities, as shall be specified by the beneficial owner thereof, if the
Securities of such series are issuable in either form; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company knows or has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
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participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a Global Security pursuant to this Section to the
persons, and in such authorized denominations, as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary Global
Security unless the Company or its agent shall have received from the person
entitled to receive the definitive Bearer Security a certificate substantially
in the form set forth in Exhibit A-1 and, if applicable, A-2 hereto; and
provided further that delivery of a Bearer Security shall occur only outside the
United States; and provided further that no definitive Bearer Security will be
issued if the Company has reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange of
Securities shall be 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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer, registration of transfer or exchange of Securities, other than
exchanges of Securities expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of like
tenor and terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
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delivered to the Trustee a Company Order directing the Trustee not to make such
exchange thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or 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 exchange
therefor (together with all coupons not destroyed, lost or stolen) a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding with coupons corresponding to any
coupons appertaining to the surrendered Security; provided that any such Bearer
Security will be delivered only in compliance with Section 3.03, 3.04 and 3.05,
as applicable.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 10.02, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security or coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
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SECTION 3.07. Payment of Interest; Interest Rights Preserved;
-----------------------------------------------
Optional Interest Reset.
-----------------------
(a) Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, interest, if any, on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.09, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 3.01 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 3.01, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent Global Security held for its account by the
Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof 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:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 30 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or agency
on any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
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<PAGE>
(b) The provisions of this Section 3.07(b) may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 75 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 1.06,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 3.07 and Section 3.05,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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In the case of any Security that is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date (other than any
Security whose Maturity is prior to such Interest Payment Date), interest shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security that is converted, interest after the date of
conversion of such Security shall not be payable.
SECTION 3.08. Optional Extension of Maturity.
------------------------------
The provisions of this Section 3.08 may be made applicable to any series of
Securities pursuant to Section 3.01 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.01). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 75 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 1.06, notice of such higher interest rate to
the Holder of any such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
any interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
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the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.09. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered 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 Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.05 and 3.07) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security is overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
SECTION 3.10. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption, repayment at
the option of the Holder, 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. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
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exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities and coupons held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.11. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 3.12 may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 3.12(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
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<PAGE>
(c) Unless otherwise specified pursuant to Section 3.01, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
3.01, then, unless otherwise specified pursuant to Section 3.01, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
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(g) "Dollar Equivalent" when used with respect to any currency unit shall
be determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but
not limited to, the ECU. A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date
of such replacement equal to the Dollar Equivalent of the Specified Amount
of such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 3.01(14) by which the written
election referred to in Section 3.12(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
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above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully justified
and protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 3.13. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 3.01 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
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(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 3.14. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 3.15. Certification by a Person Entitled to Delivery of
-------------------------------------------------
Bearer Security.
---------------
Whenever any provision of this Indenture or a Security contemplates that
certification be given by a Person entitled to delivery of a Bearer Security,
such certification shall be provided substantially in the form of Exhibit A-1
and, if applicable, A-2 hereto, with only such changes as shall be approved by
the Company and consented to by the Trustee whose consent shall not unreasonably
be withheld.
SECTION 3.16. Judgments.
---------
The Company may provide, pursuant to Section 3.01, for the Securities of any
series that, to the fullest extent possible under applicable law and except as
may otherwise be specified as contemplated in Section 3.01, (a) the obligation,
if any, of the Company to pay the principal of (and premium, if any) and
interest, if any, on the Securities of any series and any appurtenant coupons in
a Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest, if any, on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
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to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 3.17. Medium Term Securities.
----------------------
Notwithstanding any contrary provision herein, if all Securities of a series
are not to be originally issued at one time, it shall not be necessary for the
Company to deliver to the Trustee an Officers' Certificate, Board Resolution,
supplemental indenture, Opinion of Counsel or Company Order otherwise required
pursuant to Sections 1.02, 3.01 and 3.03 at or prior to the time of
authentication of each Security of such series if such documents are delivered
to the Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such request, the statements made
in the Officers' Certificate or other certificates delivered pursuant to
Sections 1.02 and 2.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount established
for such series pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by Company Order upon the telephonic, electronic or
written order of persons designated in such Company Order, Officers'
Certificate, supplemental indenture or Board Resolution (any such telephonic or
electronic instructions to be promptly confirmed in writing by such persons) and
that such persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution, such
terms and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion or
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transfer or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series and rights to receive payments of
principal (and premium, if any) and interest, if any, thereon and any right to
receive additional amounts, as provided in Section 10.05), and the Trustee, on
the demand and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of that series theretofore authenticated, issued
and delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities of that series surrendered in exchange for
Registered Securities of that series and maturing after such exchange, surrender
of which is not required or has been waived as provided in Section 3.05; (ii)
Securities of that series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06; (iii) coupons
appertaining to Bearer Securities of that series called for redemption or
surrendered for repayment and maturing after the relevant Redemption Date or
Repayment Date, as appropriate, surrender of which has been waived as provided
in Section 11.06 or 13.03; and (iv) Securities of that series for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03), have been delivered to the Trustee for
cancellation; or
(B) all such Securities of that series and, in the case of (B) (i) or
(ii) below, any coupons appertaining thereto, not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount, which shall be immediately due and payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee cancelled or for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, or any Repayment Dates, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee with respect to that series under Section 6.07, the obligations of the
Trustee to any Authenticating Agent with respect to that series under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of Article Sixteen and the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 or
15.04 shall be held in trust and applied by it, in accordance with the
provisions of the series of Securities in respect of which it was deposited, the
appurtenant coupons 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 premium, if any) and interest, if any, for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 4.02 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal, premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive payment
from the money so held in trust.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
-----------------
"Event of Default", wherever used herein, with respect to any series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body);
unless such event is either inapplicable to a particular series or it is
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specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution creating such series of Securities or in the form of Security
for such Series:
(1) default in the payment of any installment of interest upon any Security
of that series or of any coupon appertaining thereto when it becomes due and
payable, and continuance of such default for a period of 30 days, whether or not
such payment shall be prohibited by Article Sixteen; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity, whether or not such payment shall be
prohibited by Article Sixteen; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when and as the same becomes due by the terms of the Securities of
such series, whether or not such payment shall be prohibited by Article Sixteen;
or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in the performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warrants in this
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of 90
consecutive days after receipt by the Company from the Trustee or by the Company
and the Trustee from the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, of a written notice, by registered or
certified mail, specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) (i) a default occurs under any instrument or instruments (including this
Indenture) under which there is at the time outstanding, or by which there may
be secured or evidenced, any indebtedness of the Company or any Subsidiary for
money borrowed by the Company or any Subsidiary or any guarantee of payment by
the Company or any Subsidiary of any obligation of any Person which results in
acceleration (whether by declaration or automatically) of, or the nonpayment at
maturity (after giving effect to any applicable grace of period) of, such
indebtedness or guarantee in an aggregate amount exceeding $15,000,000, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or nonpayment and (ii) there shall have been a failure to cure such
default or to discharge all such defaulted indebtedness or guarantee or such
default is not otherwise waived and such acceleration has not been rescinded or
annulled within fifteen (15) days after receipt by the Company from the Trustee
or by the Company and the Trustee from the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding (excluding, if such
defaulted indebtedness includes any series of Securities, such series of
Securities) of a written notice thereof, by registered or certified mail, and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
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order by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a 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 unstayed and in effect for a period of
90 consecutive days; or
(7) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such series of Securities is issued or in the form
of Security for such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, unless the principal amount of all the
Securities of such series shall have already become due and payable, then in
every such case either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of that series (acting
as a separate class) may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Outstanding Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration, subject
to Article Sixteen, such principal amount (or specified amount) shall become
immediately due and payable. Upon payment to the Holders of such amount, all
obligations of the Company in respect of the payment of principal of the
Securities of such series shall terminate.
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At any time after such acceleration with respect to Securities of any series
has occurred and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities of that
series (and without notice to any Holder of that Series), by written notice to
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay, in the Currency in which the Securities of that series are payable (except
as may otherwise be specified pursuant to Section 3.01 for such series and
except as may be provided in Section 3.12, if and to the extent applicable):
(A) all overdue installments of interest on all Outstanding Securities
of that series, and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, to the extent that payment of such interest is
lawful,
(C) interest upon the Defaulted Interest at the rate or rates
prescribed therefor in such Securities and any related coupons, to the
extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder, and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due the Trustee under
Section 6.07,
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of (or premium, if any) or interest, if
any, on Securities of that series which have become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
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<PAGE>
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if an Event of Default specified in Sections
5.01(1), 5.01(2) or 5.01(3) occurs with respect to Securities of any series, the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities and any coupons appertaining thereto, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest, at the rate or
rates prescribed therefor in such Securities and coupons, 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 and all other
amounts due the Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (and
premium, if any) or interest, if any, in respect of the Securities of that
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in the
case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be provided in the terms thereof) (and premium, if any)
and interest, if any, owing and unpaid in respect of such Securities and any
appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel), and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for such reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons.
---------------------
All rights of action and claims under this Indenture or the Securities or
coupons 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, and any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article Sixteen;
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THIRD: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and coupons
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 premium,
if any) and interest, if any, respectively. The Holders of each series of
Securities denominated in ECU, any other composite Currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in
the Currency in which such series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
FOURTH: The balance, if any, to the Company, its successors or assigns,
or to whomever may be lawfully entitled to receive same, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.06. At least 15 days before such record date, the
Company shall, upon written request of the Trustee, mail to each Holder a notice
that states the record date, payment date and amount to be paid.
SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related coupons 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
security or 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;
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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 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, but subject to
Article Sixteen, the Holder of any Security or coupon shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.05 or 3.07) interest, if any, on such
Security or coupon on the respective Stated Maturities expressed in such
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for
the enforcement of any such payment on and after the respective Stated
Maturities or applicable Redemption Date or Repayment Date, and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of any Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders of any Security or coupon shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of any Security or coupon is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 5.12. Control by 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) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316 (a)(1)(A) of the Trust
Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may by notice to the Trustee (and without
notice to any other Holder) on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except (if not theretofore cured):
(1) an Event of Default described in Section 5.01(1), (2) or (3), or
(2) a default in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereto. This Section 5.13 shall be in
lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316
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(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Trustee
or the Company, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to any series of Securities,
(1) the Trustee shall not be liable except for the performance of
such duties and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
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<PAGE>
(4) 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder of which the
Trustee has knowledge with respect to Securities of any series, the Trustee
shall transmit by mail, in the manner and to the extent provided in TIA Section
313(c), to all Holders of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund installment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of such series; and provided further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series
no such notice to Holders of such series shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, 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. The Trustee shall not be deemed to have
knowledge of any Event of Default or of any event or condition which, with the
giving of notice, the passage of time or both, might constitute an Event of
Default unless (i) the Trustee has received written notice thereof from the
Company or a Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof.
SECTION 6.03. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
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;
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<PAGE>
(b) any instruction, 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 to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction:
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent, reasonably acceptable to the Company, or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder, and no Depositary or
Paying Agent shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any of them;
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
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<PAGE>
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, 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 or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. 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 coupons and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
-------------------
Subject to the provisions of Article Sixteen and Section 10.03, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
by the Trustee in trust hereunder for the purposes for which they were received,
and shall be segregated from the funds of the Trustee, other than funds held in
trust. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed to in writing by the Company
and the Trustee.
SECTION 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee shall from
time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(3) to indemnify each of the Trustee and each of the Trustee's
directors, officers, employees, agents, successors and assigns (the
"Indemnitees") or any predecessor Trustee for, and to hold them harmless
against, any and all losses, damages, claims, liabilities or expenses,
including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee), incurred without negligence or bad faith on
their 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 the Indemnitees against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder as Trustee, Authenticating Agent, Security Registrar or Paying
Agent.
The obligations of the Company under this Section 6.07 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the termination of this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any, on) or interest, if any, on
particular Securities. The obligations of the Company to the Trustee under this
Section 6.07 shall not be subordinated to the payment of Senior Indebtedness
under Article Sixteen. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(6) or Section
5.01(7), the expenses (including reasonable fees and expenses of its counsel)
and the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy, insolvency
or other similar law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 6.07 within a reasonable amount of time after a Responsible Officer
becomes actually aware of such claim or liability.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) 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.
To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under (i) this Indenture with
respect to Securities of any particular series of Securities other than that
series and (ii) any other indenture or indentures in each case as and to the
extent that such series or indenture satisfies the requirements set forth in
Section 310(b)(i) of the Trust Indenture Act. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
(a) There shall at all times be a Trustee hereunder with respect to
each series of Securities, which shall be either:
(i) a corporation organized and doing business under the laws of
the United States of America or of any State, the District of Columbia
or, for Bearer Securities only, any Territory authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by Federal, State, District of Columbia or Territory
authority, or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least
$50,000,000, except that the initial Trustee hereunder shall be required to
maintain a combined capital and surplus of at least $10,000,000. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
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Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as
trustee for the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in Section 6.10.
(b) The Company may appoint a separate Trustee for any one or more
series of Securities. The Trustee for each such series shall be identified
in a supplemental indenture and shall be the sole Trustee with respect to
such series of Securities and shall have all the rights, duties and
obligations as with respect to such series as reserved to the Trustee
hereunder as if set forth in such supplemental indenture.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
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
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of acceptance by a successor Trustee required by Section 6.11 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.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee subject to removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 with respect to any series of
Securities after written request therefor by the Company or by any Holder of
a Security of that series who has been a bona fide Holder of such Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(5) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series, or in the case of clauses (4) or (5), with
respect to all series of Securities, or (ii) subject to Section 5.14, 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 removal of the Trustee and the
appointment of a successor Trustee with respect to such series, or in the case
of clauses (4) or (5), with respect to all series of Securities.
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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 6.11. 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 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of such series and accepted
appointment in the manner required by Section 6.11, 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.
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 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its reasonable charges, if any, 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.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
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or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
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 the
first two paragraphs of this Section 6.11, as the case may be.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and under the Trust Indenture Act.
SECTION 6.12. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor, directly or
indirectly, of the Company (or any other obligor upon the Securities), the
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Trustee shall be subject to the provisions of Section 311(a) of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor), excluding any creditor relationships described in Section
311(b) of the Trust Indenture Act. A Trustee who resigned or has been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee, with the prior written approval of the Company, 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 exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent appointed by the Trustee 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 or, for Bearer Securities only, any Territory of the United
States of America, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if other
than the Company itself, subject to supervision or examination by Federal,
State, District of Columbia or such Territory 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 appointed by the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.14, 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 6.14, 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, if other than the Company, 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, if other than the
Company, 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 6.14, the
Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
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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 6.14.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section 6.14, 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.
Chemical Trust Company of California,
as Trustee
By:__________________________________
As Authenticating Agent
By:__________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company and any other obligor upon the Securities will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, containing all information in
the possession or control of the Company or any other such obligor, or of
any of the Company's or such other obligor's Paying Agents, as to the names
and addresses of the Holders of Registered Securities of such series as of
the preceding Regular Record Date (or a date to be determined pursuant to
Section 3.01 for Original Issue Discount Securities), and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished. The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities filed with the Trustee by
such Holders.
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 Section 312(b) of
the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
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 in writing when any Securities are listed on any stock
exchange.
SECTION 7.04. 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 Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; 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.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other Person
or transfer (by lease, assignment, sale or otherwise) all or substantially all
of its properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (i) shall be a
corporation, partnership or trust organized and validly existing under the
laws of the United States of America or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, and the
assumption contemplated by clause (a) above, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with
this Article VIII and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another wholly-owned Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
SECTION 8.02. Successor Person Substituted.
----------------------------
The successor Person formed by such consolidation or into which the Company
is merged or the successor Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein, and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged and released from all obligations and covenants
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under this Indenture and the Securities. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of all or any series of Securities or coupons (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of such series); provided that such action pursuant to this clause (2) shall
not adversely affect the interests of the Holders of any series or any
appurtenant coupons in any material respect; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series or
any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination provided for in this clause (5): (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
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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 Outstanding Security; or
(6) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar Federal statute hereafter enacted; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11; or
(9) 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 (9) shall not
adversely affect the interests of the Holders of Securities of any series or
any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of 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 Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof (or premium, if any) or the
rate of interest, if any, thereon or any premium payable upon the redemption
thereof, or repayment thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 10.05 (except as contemplated by
Section 8.01(1) and permitted by Section 9.01(1)) 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 5.02, or change any Place of Payment where, or the Currency in
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which, any Security (or premium, if any) or interest, if any, thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or Stated Maturity thereof (or, in the
case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as applicable); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture or reduce the quorum or voting requirements of Section 14.04; or
(3) modify any of the provisions of this Section 9.02 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security 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 9.02, or the deletion of
this proviso, in accordance with the requirements of Section 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 9.03. 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 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
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obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
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 9.07. Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture applicable to the Holders of Securities of one or more
series pursuant to Section 9.02, the Company shall transmit to such Holders a
notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities, any appurtenant coupons and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
additional amounts, if any, payable as provided in Section 10.05 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
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3.01, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 10.05); provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all the presentations, surrenders, notices and demands, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Bearer Securities of that series pursuant to Section 10.05) at the place
specified for the purpose pursuant to Section 3.01(5).
No payment of principal of (or premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and interest
denominated in Dollars (including additional amounts payable in respect thereof)
on any Bearer Security may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at
all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise
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provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
The Company may 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 10.03. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company, a Subsidiary or any of their respective Affiliates shall at
any time act as the Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, 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 premium, if any) and interest, if any, so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing 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 premium, if
any) or interest, if any, on any Securities of that series, and any appurtenant
coupons, deposit with the appropriate Paying Agent a sum sufficient to pay such
amount so becoming due, 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 in writing 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 10.03, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent, (ii) give the
Trustee notice in writing of any default by the Company (or any other obligor
upon the Securities of such series) in the making of any payment of principal
(and premium, if any) or interest, if any, on the Securities of such series and
(iii) 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 any appurtenant coupons, 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 with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
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the Trustee all sums held in trust by the Company or such Paying Agent, in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, 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 premium, if any)
or interest, if any, on any Security of any series or any related coupons and
remaining unclaimed for two years after such principal (or 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,
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 free of the trust formerly impressed upon it.
SECTION 10.04. Purchase of Securities by Company or Subsidiary.
-----------------------------------------------
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 10.05. Payment of Additional Amounts.
-----------------------------
If the Securities of a series provide for the payment of amounts in addition
to principal, premium or interest ("additional amounts"), the Company will pay
to the Holder of any security of any such series or any coupon appertaining
thereto additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on, or in
respect of, any Security of any series, any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided
for in the terms of such Securities and this Section 10.05 to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
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If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest, if any, if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying Agent
or Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest, if any, on the
Securities of that series shall be made to Holders of Securities of that series
or the related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts, if
any, required by the terms of such Securities and the first paragraph of this
Section 10.05. The Company covenants to indemnity the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 10.05.
SECTION 10.06. Statement by Officers as to Default.
-----------------------------------
(a) Each obligor upon the Securities (including 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, a certificate from each such obligor's principal
executive officer, principal financial officer or principal accounting officer,
stating that a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has been
made under his supervision and whether or not to the best knowledge of the
signer(s) thereof such obligor is in default in the performance and observance
of any of the terms, conditions and covenants of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if such
obligor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default, an Officers' Certificate specifying such Event of Default,
the period of existence thereof and what action the Company is taking or
proposes to take with respect thereto.
SECTION 10.07. 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 legal existence.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
The Company may reserve the right to redeem and pay before Stated Maturity
all or any part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by provision
therefor in the form of Security for such series established and approved
pursuant to Article Two and Article Three and on such terms as are specified in
such form or in the indenture supplemental hereto provided in Section 3.01.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities redeemable at the
election of the Company shall be evidenced by, or pursuant to authority granted
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 or pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of like tenor and terms of any series (a
"Tranche") 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 Tranche not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
include provision for the election for redemption of portions of the principal
of Securities of such Tranche of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be selected
by the Company.
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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 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(6) that the redemption is on account of a sinking fund, purchase fund
or other obligation, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at such
place or places outside of the United States, except as otherwise specified
in Section 10.02 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
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(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
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.
Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which such Securities are payable sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date;
provided that such amount shall be so deposited with the Trustee or Paying Agent
in time for the Trustee or the Paying Agent, as the case may be, to pay such
Redemption Price in accordance with its normal procedures.
SECTION 11.06. 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) 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; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at an office
or agency located outside the United States except as otherwise provided in
Section 10.02) and provided further, that, unless otherwise specified in Section
3.01, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Registered Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
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coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.02.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and Stated Maturity and of like tenor and terms, 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 12.01. 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 3.01 for Securities of such series.
SECTION 12.02. Provisions with Respect to any Sinking Funds.
--------------------------------------------
Unless the form or terms of any series of Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking fund
payment with respect to such series of Securities in cash, the Company may at
its option (1) deliver to the Trustee for cancellation any Securities of such
series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
(including by way of optional redemption (pursuant to the sinking fund or
otherwise) but not by way of mandatory sinking fund redemption) and theretofore
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delivered to the Trustee for cancellation, and if it does so then (i) Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company, and (B) such Securities, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
acquired by the Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no Event of
Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be cancelled by
the Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with respect
to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 11.06. The Trustee shall select, in the manner provided in
Section 11.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 11.04 (and with the
effect provided in Section 11.06) for the redemption of Securities in part at
the option of the Company. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Securities of such series shall be added to
the next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.02. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before such sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall deposit with the Trustee cash in a
sum equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 12.02; provided that such cash shall be so deposited with the Trustee in
time for the Trustee to make the payment of such accrued interest in accordance
with its normal procedures.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 13.01. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 3.01 for Securities
of such series) in accordance with this Article.
SECTION 13.02. Repayment of Securities.
-----------------------
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 13.03. Exercise of Option; Notice.
--------------------------
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; provided, however, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 10.02. Such notice, which shall be irrevocable,
shall specify the principal amount of such Security to be repaid, which shall be
equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denominations of the
Security or Securities of the same series to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied by
all unmatured coupons and all matured coupons in default, such Bearer Security
may be paid after deducting from the Repayment Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States except as otherwise
provided in Section 10.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
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The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
provided, however, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 13.04. Election of Repayment by Remarketing Entities.
---------------------------------------------
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Date, Securities of such
series from the Holders thereof who give notice and surrender their Securities
in accordance with Section 13.03.
SECTION 13.05. Securities Payable on the Repayment Date.
----------------------------------------
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 13.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.01. Purposes for which Meetings May be Called.
-----------------------------------------
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If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 14.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities for any purpose
specified in Section 14.01, to be held at such time and at such place in the
Borough of Manhattan, the City of New York, the City of San Francisco,
California or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 no more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 14.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, the City
of New York, the City of San Francisco, California or in London for such
meeting and may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 14.03. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 14.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
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principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence
of a quorum in any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of this reconvening of any
adjourned meeting shall be given as provided in Section 14.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 14.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture, the
Company may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.04 and the appointment of any proxy
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shall be proved in the manner specified in Section 1.04 or, in the case of
Bearer Securities, by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
14.02(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint
a temporary chairperson. A permanent chairperson and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1.00 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at a meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 14.06. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of vote who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.02 and, if
applicable, Section 14.01. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
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preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option by Board Resolution at any time, to
have either Section 15.02 or Section 15.03 applied to the Outstanding Securities
of any series designated pursuant to Section 3.01 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 15.02. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.02 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 15.04 are satisfied (hereinafter called "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
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 15.04 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities of such series when payments are due, (2) the Company's
obligations with respect to the Securities of such series under Sections 3.04,
3.05, 3.06, 10.02, 10.03 and any additional amounts under Section 10.05, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
including, but not limited to, pursuant to Section 6.07 and (4) this Article
Fifteen. Subject to compliance with this Article Fifteen, the Company may
exercise its option provided in Section 15.01 to have this Section 15.02 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 15.01 to have Section 15.03 applied
to the Outstanding Securities of such series and any related coupons.
SECTION 15.03. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 15.01 to have
this Section 15.03 applied to the Outstanding Securities of any Defeasible
Series and any related coupons, (1) the Company shall be released from its
obligations under Sections 8.01 and 10.07 and (2) the occurrence of any event
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specified in Sections 5.01(3), 5.01(4) (with respect to Sections 8.01 and 10.07)
and 5.01(8) shall be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided in
this Section 15.03 on and after the date the conditions set forth in Section
15.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 5.01(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section 15.02
or Section 15.03 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount (in such
Currency in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity), (B) U.S. Government
Obligations that through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, 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 any such other qualifying Trustee)
to pay and discharge, the principal of (and premium, if any) and interest,
if any, on the Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities of such series.
(2) In the case of an election under Section 15.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
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(3) In the case of an election under Section 15.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize gain
or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice, or lapse of time,
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.01 (6) and (7), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 15.05. 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 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
15.05 and Section 15.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 15.04 in respect of the
Securities of any Defeasible Series and any related coupons shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and the related coupons, if any, of such series and this Indenture,
to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
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Holders of Securities of such series, of all sums due and to become due thereon
in respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 15.04(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.12(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 15.04(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of
any Security in respect of which the deposit pursuant to Section 15.04(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 15.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen 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 15.04 with respect to Securities of any Defeasible Series that, 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 that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
SECTION 15.06. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 15.05 with respect to Securities of such series in
accordance with this Article Fifteen; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any on
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any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to recover such payment from the money so held in trust.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security by such
Holder's acceptance thereof likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Sixteen, the
indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest, if any, in respect of each and all of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
SECTION 16.02. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
Upon any distribution of assets of the Company 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 such event
(1) 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 cash,
before the Holders of any series of the Securities are entitled to receive
any payment on account of the principal (and premium, if any), or interest,
if any, in respect of the Securities of that series; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for the
provisions of this Article Sixteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of
any series of the Securities, shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
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representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest, if any, on
the Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
16.02, the Trustee or the Holder of any Security of a series shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities of that series, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall then have been made known
to the Trustee, or such Holder, as the case may be, 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 Sixteen only, the words "cash, property or
securities" shall not be deemed to include shares of Capital 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 the payment
of which is subordinated, at least to the extent provided in this Article
Sixteen with respect to the Securities of the applicable series, to the payment
of all Senior Indebtedness which may at the time be outstanding; provided,
however, that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets 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 16.02 if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
SECTION 16.03. Default on Senior Indebtedness.
------------------------------
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The Company may not make any payment of the principal (and premium, if any)
or interest, if any, in respect of a series of the Securities and may not
acquire any Securities of that series for cash or property if:
(1) a Senior Indebtedness Default shall have happened and shall not
have been cured or waived or shall not have ceased to exist, or
(2) such payment in respect of the Securities of that series would,
immediately after giving effect thereto, result in a Senior Indebtedness
Default.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 16.03, and if such fact then shall have been known or
thereafter shall have been made known to the Trustee or such Holder, as the case
may be, pursuant to the terms of this Indenture, then except as hereinafter
provided, unless and until any such Senior Indebtedness Default shall have been
cured or waived or shall cease to exist, such payment shall be paid over to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing the Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay in full all Senior
Indebtedness then due, after giving effect to any concurrent payment to the
holders of such Senior Indebtedness.
Unless and until written notice shall be given to the Trustee by or on
behalf of any holder of Senior Indebtedness notifying it of the existence of one
or more of the circumstances described in clause (1) or (2), above, the Trustee
shall be entitled to assume that no such circumstances exist.
Notwithstanding the existence of any one or more of such circumstances,
nothing in this Article Sixteen or elsewhere in this Indenture shall prevent the
Trustee from applying, for the purposes for which the same were received, any
moneys that may at any time be received by the Trustee in trust pursuant to any
provision of this Indenture, if (x) in the case of a redemption of Securities,
the Trustee shall not have received, prior to the giving of notice of such
redemption, written notice from or on behalf of any holder of any Senior
Indebtedness of the existence of one or more of the circumstances described in
clause (1) or (2), above, or (y) in the case of a deposit for the purpose of any
other payment to Holders, the Trustee shall not have received, at least ten days
prior to the date on which such payment is to be made, written notice from or on
behalf of any holder of any Senior Indebtedness of the existence of one or more
of such circumstances.
The provisions of this Section 16.03 shall not apply to any payment with
respect to which Section 16.02 would be applicable.
SECTION 16.04 Prior Payment to Senior Indebtedness Upon Acceleration
------------------------------------------------------
of Securities.
-------------
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Indebtedness
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shall be entitled to receive payment in full of all amounts due on or in respect
of all Senior Indebtedness before the Holders of such Securities shall be
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
principal of (or premium, if any) or interest, if any, on the Securities or on
account of the purchase or other acquisition of Securities of any series.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 16.04, and if such fact then shall have been made
known, or thereafter shall have been made known, to the Trustee or such Holder,
as the case may be, pursuant to the terms of this Indenture, then except as
hereinafter provided, 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 16.02 would be applicable.
SECTION 16.05. Payment Permitted if No Default.
-------------------------------
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in any of the Securities of a 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 16.02 or under
the conditions described in Section 16.02, 16.03 or 16.04, from making payments
at any time of the principal (and premium, if any), or interest, if any, as the
case may be, in respect of the Securities of that series, or (b) the application
by the Trustee or the retention by any Holder of any money deposited with it
hereunder to the payment of or on account of the principal (and premium, if
any), or interest, if any, as the case may be, in respect of the Securities of
that series if the Trustee did not have, at the time provided in the proviso to
the first paragraph of Section 16.10, notice that such payment would have been
prohibited by the provisions of this Article Sixteen.
SECTION 16.06. 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 to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Sixteen to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal (and
premium, if any) or interest, if any, as the case may be, in respect of the
Securities of that 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 that series or the Trustee would be entitled except for the
provisions of this Article Sixteen, and no payments pursuant to the provisions
of this Article Sixteen to the Company or to the holders of Senior Indebtedness
by Holders of the Securities of that series or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
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Holders of the Securities of that series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 16.07. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of each
series, on one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or in
the Securities of a series is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities
of that series, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities of that series the
principal (and premium, if any) and interest, if any, as the case may be, in
respect of the Securities of that series as and when the same shall become
due and payable in accordance with the terms of the Securities of that
series and this Indenture and which, subject to the rights under this
Article Sixteen of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities of that series and creditors of the Company, other than
holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of that series
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of Senior Indebtedness to receive cash,
property or securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 16.08. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided for in this
Article Sixteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 16.09. 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 act or 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.
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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
that series, without incurring responsibility to the Holders of the Securities
of that series and without impairing or releasing the subordination provided in
this Article Sixteen or the obligations hereunder of the Holders of the
Securities of that series to the holders of such 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 dispose of 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 or any other Person.
SECTION 16.10. 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 a series. Failure to give such notice
shall not affect the subordination of the Securities of that series to Senior
Indebtedness. Notwithstanding the provisions of this Article Sixteen 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 at the address
specified in Section 1.05 from the Company or a holder of Senior Indebtedness or
from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Article Six, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received, at least five
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the principal (and premium, if any), or interest, if any, as the case may be,
in respect of any Security of that series), the notice with respect to such
money provided for in this Section 16.10, 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 five Business Days prior to such date.
Subject to the provisions of Article Six, 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 or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). 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 Sixteen, 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 Sixteen, and if such evidence is not furnished, the
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Trustee may defer any payment which it may be required to make for the benefit
of such Person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 16.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Article Six, and
the Holders of the Securities of a 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, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of that
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of 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 Sixteen.
SECTION 16.12. 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 the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
of that series or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness of that series shall be
entitled by virtue of this Article Sixteen or otherwise. The Trustee shall not
be charged with knowledge of the existence of Senior Indebtedness or of any
facts that would prohibit any payment hereunder unless a Trust Officer of the
Trustee shall have received notice to that effect at the address of the Trustee
set forth in Section 1.05. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Sixteen and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 16.13. Rights of Trustee as Holder of Senior Indebtedness;
--------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee or any Authenticating Agent in its individual capacity shall be
entitled to all the rights set forth in this Article Sixteen 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 Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07.
SECTION 16.14. Article Sixteen Applicable to Paying Agents.
-------------------------------------------
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In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Sixteen 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 Sixteen in addition to or in place of the Trustee;
provided, however, that Sections 16.10 and 16.12 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 17.01. Conversion Privilege and Conversion Price.
-----------------------------------------
If the Securities of a series are convertible, which shall be specified in
the manner contemplated in Section 3.01, and upon compliance with the provisions
of this Article, at the option of the Holder thereof, any Security or any
portion of the principal amount thereof may be converted into fully paid and
nonassessable shares of Common Stock of the Company, at the conversion price in
effect at the time of conversion. The periods within which or the dates on
which, the prices at which and the terms and conditions upon which Securities
may be so converted shall be specified in the manner contemplated by Section
3.01. In case a Security or portion thereof is called for redemption or is
repurchased, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Redemption Date or the
repurchase date, unless the Company defaults in making the payment due upon
redemption or repurchase.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) or (5) of Section
17.04, the Holder of each Security, upon the conversion thereof pursuant to this
Article subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) or (5) of Section 17.04, shall also be
entitled to receive for each share of Common Stock into which such Security is
converted, the portion of the evidences of indebtedness, shares of Capital
Stock, cash and assets so distributed applicable to one share of Common Stock,
provided that, at the election of the Company (whose election shall be evidenced
by a Board Resolution) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such distribution not
consisting of cash or securities of the Company, pay such Holder an amount in
cash equal to the fair market value thereof (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution). If any conversion of a Security described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock that the Holder of the Security so converted is entitled
to receive in accordance with the immediately preceding sentence, the Company
may elect (such election to be evidenced by a Board Resolution) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of Capital
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Stock, cash or assets to which such Holder is so entitled, provided that such
due bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then traded and
(ii) requires payment or delivery of such evidences of indebtedness, shares of
Capital Stock, cash or assets no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
SECTION 17.02. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege referred to in this Article
17, the Holder of any Security to be converted shall surrender such Security,
duly endorsed or assigned to the Company or in blank in the case of Registered
Securities, together in the case of Bearer Securities with all matured coupons
and any unmatured coupons in default appertaining thereto, at any office or
agency of the Company maintained for that purpose pursuant to Section 10.02,
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Registered Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Registered Securities or portions thereof that have been called for
redemption, or are to be repurchased, on such Interest Payment Date or a
Redemption Date or a repurchase date within the period beginning on such Regular
Record Date and ending on such Interest Payment Date) be accompanied by payment
by wire transfer or certified check or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Registered Security then being converted. Except as
provided in the preceding sentence and subject to the last paragraph of Section
3.07, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the securities surrendered for conversion or on account
of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person or persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 17.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with any
coupons appertaining thereto, if applicable.
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SECTION 17.03. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or, in the case of Registered Securities,
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or
Securities (or, in the case of Registered Securities, specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the Closing Price at the close of
business on the date of conversion.
SECTION 17.04. Adjustment of Conversion Price.
------------------------------
(1) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in stock or shall pay or make a dividend or
other distribution on any other class of Capital Stock of the Company which
dividend or distribution includes Common Stock, the conversion price in effect
at the opening of business on the day following the day fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case
the Company shall pay or make a dividend or other distribution on its Common
Stock consisting exclusively of, or shall otherwise issue to all holders of its
Common Stock, rights or warrants entitling the holders thereof to subscribe for
or purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close of business on
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the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In the event that outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in the event that outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the conversion price
in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4), in the event that
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class of Capital
Stock, cash or assets (including securities, but excluding any rights or
warrants referred to in paragraph (2) of this Section, excluding any dividend or
distribution paid exclusively in cash and excluding any dividend or distribution
referred to in paragraph (1) of this section), the conversion price shall be
reduced to be equal to the price determined by multiplying the conversion price
in effect immediately prior to the effectiveness of the conversion price
reduction contemplated by this paragraph (4) by a fraction of which the
numerator shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date of such
effectiveness less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution), on the date of such effectiveness of the portion of the
evidences of indebtedness, shares of Capital Stock, cash and assets so
distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the later of (a) the date fixed for the payment of such distribution
and (b) the date 20 days after the notice relating to such distribution is given
pursuant to Section 17.06(a) (such later date of (a) and (b) being referred to
as the "Reference Date"). If the Board of Directors determines the fair market
value of any distribution for purposes of this paragraph (4) by reference to the
actual or when issued trading market for any securities comprising such
distribution, it must in doing so consider the prices in such market over the
same period used in computing the current market price per share pursuant to
paragraph (8) of this Section. For purposes of this paragraph (4), any dividend
or distribution that includes shares of Common Stock, rights or warrants to
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subscribe for or purchase shares of Common Stock or other securities convertible
into or exchangeable for shares of Common Stock shall be deemed instead to be
(a) a dividend or distribution of the evidences of indebtedness, cash, assets or
shares of Capital Stock other than such shares of Common Stock, such rights or
warrants or such other convertible or exchangeable securities (making any
conversion price reduction subject to this paragraph (4)), immediately followed
by (b) in the case of such shares of Common Stock or such rights or warrants, a
dividend or distribution thereof (making any further conversion price reduction
subject to paragraph (1) or (2) of this Section, except (i) the Reference Date
of such dividend or distribution as defined in this paragraph (4) shall be
substituted for "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such determination"
within the meaning of paragraph (1) of this Section) or (c) in the case of such
other convertible or exchangeable securities, a dividend or distribution of such
number of shares of Common Stock as would then be issuable upon the conversion
or exchange thereof, whether or not the conversion or exchange of such
securities is subject to any conditions (making any further conversion price
reduction subject to paragraph (1) of this Section, except (i) the Reference
Date of such dividend or distribution as defined in this paragraph (4) shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such determination" and (ii)
the shares deemed to constitute such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination", each within the meaning of paragraph (1) of this Section).
(5) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed as part of a distribution referred to in paragraph (4) of this
Section) in an aggregate amount that, together with (i) the aggregate amount of
any other distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution and
in respect of which no conversion price adjustment pursuant to this paragraph
(5) or paragraph (6) below has been made and (ii) the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of any
other consideration payable in respect of any tender offer by the Company or a
subsidiary for all or any portion of the Company's Common Stock concluded within
the 12 months preceding the date of payment of such distribution and in respect
of which no conversion price adjustment pursuant to paragraph (8) of this
Section has been made, exceeds 10% of the product of the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for stockholders entitled to receive such
distribution, times the number of shares of Common Stock outstanding on such
date, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately prior
to the effectiveness of the conversion price reduction contemplated by this
paragraph (5) by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date of such effectiveness less the amount of cash so
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distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the later of
(a) the day following the date fixed for the payment of such distribution and
(b) the date 20 days after the notice relating to such distribution is given
pursuant to Section 17.06 (if such notice is required to be given).
(6) In the event that a tender offer made by the Company or any Subsidiary
for all or any portion of the Company's Common Stock shall expire and such
tender offer shall involve an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) on the last time (the
"Expiration Time") tenders may be made pursuant to such tender offer (as it may
be amended) that, together with (i) the aggregate amount of cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution), as of the expiration of such
tender offer, of any other consideration payable in respect of any tender offer
by the Company or a Subsidiary for all or any portion of the Company's Common
Stock expiring within the 12 months preceding the expiration of such tender
offer and in respect of which no conversion price adjustment pursuant to this
paragraph (6) or paragraph (5) above has been made and (ii) the aggregate amount
of any distributions to all holders of the Company's Common Stock made
exclusively in cash within the 12 months preceding the expiration of such tender
offer and in respect of which no conversion price adjustment pursuant to
paragraph (5) of this Section has been made exceeds 5% of the product of the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock at the Expiration Time multiplied by the number of
shares of Common Stock outstanding (including any tendered shares) at the
Expiration Time, the conversion price shall be reduced so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be (i) the product of the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock at the Expiration
Time multiplied by the number of shares of Common Stock outstanding (including
any tendered shares) at the Expiration Time minus (ii) the fair market value
(determined as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to
as the "Purchased Shares") and the denominator shall be the product of (i) such
current market price per share at the Expiration Time multiplied by (ii) such
number of outstanding shares at the Expiration Time less the number of Purchased
Shares, such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. No such adjustment shall be
made in the event of any purchase pursuant to Rule 10b-18 under the Exchange
Act.
(7) The reclassification of Common Stock into any security or securities
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 17.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
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Stock (and the effective date of such reclassification shall be deemed to be the
"Reference Date" within the meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective", or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section). Rights
or warrants issued by the Company to all holders of its Common Stock entitling
the holders thereof to subscribe for or purchase shares of Common Stock or
preferred stock of the Company, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuance of Common Stock, in the case of
each of clauses (i) through (iii), until the occurrence of a specified event or
events ("Trigger Event"), shall for purposes of this Section 17.04 not be deemed
issued and the distribution thereof not be deemed made or paid until the
occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and paragraphs
(2), (4) and (5) of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the Closing Prices for
the five consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before, and ending not later than, the date in question;
provided, that such market price shall be appropriately adjusted by the Board
(which adjustment shall be conclusive and shall be evidenced by a Board
Resolution) to take into account the occurrence, during the period commencing on
the first of such Trading Days during such five Trading Days period and ending
on the date in question, of any event that requires an adjustment in the
conversion price under this Section 17.04. For the purpose of any computation
under paragraph (6) of this Section, the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily Closing
Prices for the five consecutive Trading Days selected by the Company commencing
on or after the latest of the date (any such date, the "Commencement Date") (i)
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20 Trading Days before the date in question, (ii) of commencement of the tender
offer requiring such computation and (iii) of the last amendment, if any, of
such tender offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the Expiration Time of such tender offer; provided, however, that
such market price shall be appropriately adjusted by the Board (which adjustment
shall be conclusive and shall be evidenced by a Board Resolution) to take into
account the occurrence, during the period commencing on the first of such
Trading Days during such five Trading Day period and ending on the date in
question, of any event that requires an adjustment in the conversion price under
this Section 17.04.
(9) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this paragraph (10) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(11) Notwithstanding any other provision of this Section 17.04, no
adjustment to the conversion price shall (unless permitted by New Jersey law)
reduce the conversion price below the then par value per share of the Common
Stock, and any such purported adjustment shall instead reduce the conversion
price to such par value. The Company hereby covenants not to take any action
that would or does result in any adjustment in the conversion price that, if
made without giving effect to the previous sentence, would cause the conversion
price to be less than the then par value per share of the Common Stock, unless
such action is permitted by New Jersey law.
(12) If all of the shares of the Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
SECTION 17.05. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion prices are adjusted as herein provided and at such
other times as the Trustee shall request:
- 104 -
<PAGE>
(a) the Company shall compute the adjusted conversion price in
accordance with Section 17.04 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be delivered to the Trustee
and filed at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.02. The certificate shall be
conclusive evidence that the adjustment is correct. The Trustee shall not
be under any duty or responsibility with respect to any such certificate
except to exhibit the same to any Holder desiring inspection thereof; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and, when the conversion price is adjusted, as soon as practicable after it
is required, the Company shall cause such notice to be mailed to all Holders
of Registered Securities at their last address as they shall appear in the
Security Register.
SECTION 17.06 Notice of Certain Corporate Action.
----------------------------------
In the event:
(a) that the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
(b) that the Company shall authorize the granting to the holders of
its Common Stock generally of rights or warrants to subscribe for or
purchase any shares of Capital Stock of any class or of any other rights; or
(c) of the occurrence of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of the outstanding
shares of Common Stock), or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) that the Company or any Subsidiary shall commence a tender offer
for all or a portion of the Company's outstanding shares of Common Stock (or
shall amend any such tender offer);
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 10.02, and shall cause to be mailed to all Holders of Registered
Securities at their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
- 105 -
<PAGE>
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on which such
tender offer commenced, the date on which such tender offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto).
SECTION 17.07. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
SECTION 17.08. Taxes on Conversions.
--------------------
The Company will pay any and all taxes, other than any franchise or income
taxes, that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 17.09. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock that may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable
and, except as provided in Section 17.08, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
SECTION 17.10. Cancellation of Converted Securities, etc.
-----------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee to
be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.10.
SECTION 17.11. Provision in the Case of Consolidation, Merger or
-------------------------------------------------
Sales of Assets.
---------------
- 106 -
<PAGE>
In the event of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in the event of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in the event of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, during the period such Security shall be convertible as
specified in Section 17.01, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock of the Company failed to exercise its rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of Common
Stock in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section, the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).
Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 17.12. Trustee's Adjustment Disclaimer.
-------------------------------
The Trustee has no duty to determine when an adjustment under this Article
17 should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 17.11 need
be entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no representation
as to the validity or value of any securities or assets issued upon conversion
of Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article 17.
- 107 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BERGEN BRUNSWIG CORPORATION
By: _____________________________
Attest:
______________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA, as Trustee
By: _____________________________
Attest:
______________________________
- 108 -
<PAGE>
STATE OF CALIFORNIA
COUNTY OF ORANGE
On the ______ day of ____________, 1996, before me personally came _______
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ______________, California and that he is _____________
of Bergen Brunswig Corporation, one of the corporations described in and which
executed the foregoing instrument; and that he signed his name thereto by
authority of the board of directors of Bergen Brunswig Corporation.
_______________________________
Notary Public
_______________________________
(Notarial Seal)
- 109 -
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On the ______ day of ____________, 1996, before me personally came _______
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ______________, California and that he is _____________
of Chemical Trust Company of California, one of the parties described in and
which executed the above instrument; and that he signed his name thereto by
authority of the Board of Directors of Chemical Trust Company of California.
_______________________________
Notary Public
_______________________________
(Notarial Seal)
- 110 -
<PAGE>
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States Person(s) that are
(a) foreign branches of United States financial Institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.16512(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Bergen Brunswig Corporation, or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Codes of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] ______________ of
such interest in the above-captioned Securities in respect of which we are not
A-1-1
<PAGE>
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, 19 __
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to
the Exchange Date, as applicable]
[Name of Person Making Certification]
_______________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
principal amount set forth below (our "Member Organizations") substantially in
the form attached hereto, as of the date hereof, [U.S.$]_________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Bergen Brunswig
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163.5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
A-2-1
<PAGE>
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedal S.A.]
By_______________________________
A-2-2
EXHIBIT 4.6
BERGEN BRUNSWIG CORPORATION
Liquid Yield Option(TM) Notes
due _____
(Zero Coupon-Subordinated)
________________________________
Indenture
Dated as of ___________, 199___
________________________________
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
(TM)Trademark of Merrill Lynch & Co., Inc.
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- ---------
310(a)(1) .................................................. 7.10
(a)(2) .................................................. 7.10
(a)(3) .................................................. N.A
(a)(4) .................................................. N.A
(a)(5) .................................................. 7.10
(b) .................................................. 7.08; 7.10
(c) .................................................. N.A
311(a) .................................................. 7.11
(b) .................................................. 7.11
(c) .................................................. N.A
312(a) .................................................. 2.05
(b) .................................................. 12.03
(c) .................................................. 12.03
313(a) .................................................. 7.06
(b) .................................................. 7.06
(c) .................................................. 12.02
(d) .................................................. 7.06
314(a) .................................................. 4.02;4.03;12.02
(b) .................................................. N.A
(c)(1) .................................................. 12.04
(c)(2) .................................................. 12.04
(c)(3) .................................................. N.A.
(d) .................................................. N.A.
(e) .................................................. 12.05
(f) .................................................. 4.04
315(a) .................................................. 7.01
(b) .................................................. 7.05; 12.02
(c) .................................................. 7.01
(d) .................................................. 7.01
(e) .................................................. 6.11
316(a) (last sentence)...................................... 2.08
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2) .................................................. N.A.
(b) .................................................. 6.07
(c) .................................................. 2.12
317(a)(1) .................................................. 6.08
- ------------------
(1) This Cross Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
(a)(2) .................................................. 6.09
(b) .................................................. 2.04
318(a) .................................................. 12.01
N.A. means Not Applicable.
<PAGE>
TABLE OF CONTENTS(2)
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.............................................. 1
SECTION 1.02 Other Definitions........................................ 5
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........ 5
SECTION 1.04 Rules of Construction.................................... 6
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating.......................................... 6
SECTION 2.02 Execution and Authentication............................. 6
SECTION 2.03 Registrar, Paying Agent and Conversion Agent............. 7
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust....... 8
SECTION 2.05 Securityholder Lists..................................... 8
SECTION 2.06 Transfer and Exchange.................................... 8
SECTION 2.07 Replacement Securities................................... 9
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action 9
SECTION 2.09 Temporary Securities..................................... 10
SECTION 2.10 Cancellation............................................. 11
SECTION 2.11 Persons Deemed Owners.................................... 11
SECTION 2.12 Acts of Holders.......................................... 11
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee...................... 12
SECTION 3.02 Selection of Securities to Be Redeemed................... 13
SECTION 3.03 Notice of Redemption..................................... 13
SECTION 3.04 Effect of Notice of Redemption........................... 14
SECTION 3.05 Deposit of Redemption Price.............................. 14
SECTION 3.06 Securities Redeemed in Part.............................. 14
SECTION 3.07 Conversion Arrangement on Call for Redemption............ 14
- --------------------------
(2) This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
- i -
<PAGE>
SECTION 3.08 Purchase of Securities at Option of the Holder........... 15
SECTION 3.09 Effect of Purchase Notice................................ 22
SECTION 3.10 Deposit of Purchase Price................................ 22
SECTION 3.11 Securities Purchased in Part............................. 23
SECTION 3.12 Covenant to Comply with Securities Laws
Upon Purchase of Securities............................ 23
SECTION 3.13 Repayment to the Company................................. 23
SECTION 3.14 CUSIP Numbers............................................ 23
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities.................................... 24
SECTION 4.02 SEC Reports.............................................. 24
SECTION 4.03 Compliance Certificate................................... 24
SECTION 4.04 Further Instruments and Acts............................. 24
SECTION 4.05 Maintenance of Office or Agency.......................... 24
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets................ 25
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default........................................ 26
SECTION 6.02 Acceleration............................................. 27
SECTION 6.03 Other Remedies........................................... 27
SECTION 6.04 Waiver of Past Defaults.................................. 28
SECTION 6.05 Control by Majority...................................... 28
SECTION 6.06 Limitation on Suits...................................... 28
SECTION 6.07 Rights of Holders to Receive Payment..................... 29
SECTION 6.08 Collection Suit by Trustee............................... 29
SECTION 6.09 Trustee May File Proofs of Claim......................... 29
SECTION 6.10 Priorities............................................... 30
SECTION 6.11 Undertaking for Costs.................................... 30
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.................. 30
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee........................................ 31
- ii -
<PAGE>
SECTION 7.02 Rights of Trustee........................................ 32
SECTION 7.03 Individual Rights of Trustee............................. 32
SECTION 7.04 Trustee's Disclaimer..................................... 33
SECTION 7.05 Notice of Defaults....................................... 33
SECTION 7.06 Reports by Trustee to Holders............................ 33
SECTION 7.07 Compensation and Indemnity............................... 33
SECTION 7.08 Replacement of Trustee................................... 34
SECTION 7.09 Successor Trustee by Merger.............................. 35
SECTION 7.10 Eligibility; Disqualification............................ 35
SECTION 7.11 Preferential Collection of Claims Against Company........ 35
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities..................... 36
SECTION 8.02 Repayment to the Company................................. 36
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders............................... 36
SECTION 9.02 With Consent of Holders.................................. 37
SECTION 9.03 Compliance with Trust Indenture Act...................... 38
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions... 38
SECTION 9.05 Notation on or Exchange of Securities.................... 38
SECTION 9.06 Trustee to Sign Supplemental Indentures.................. 39
SECTION 9.07 Effect of Supplemental Indentures........................ 39
ARTICLE 10
SUBORDINATION
SECTION 10.01 Securities Subordinate to Senior Indebtedness........... 39
SECTION 10.02 Payment Over of Proceeds upon Dissolution, Etc.......... 40
SECTION 10.03 Acceleration of Securities.............................. 41
SECTION 10.04 Default on Senior Indebtedness.......................... 42
SECTION 10.05 Payment Permitted if no Default......................... 43
SECTION 10.06 Subrogation to Rights of Holders of Senior Indebtedness. 43
SECTION 10.07 Provisions Solely to Define Relative Rights............. 43
SECTION 10.08 Trustee to Effectuate Subordination..................... 44
SECTION 10.09 No Waiver of Subordination Provisions................... 44
SECTION 10.10 Notice to Trustee....................................... 44
- iii -
<PAGE>
SECTION 10.11 Reliance on Judicial Order or Certificate
of Liquidating Agent.................................. 45
SECTION 10.12 Trustee Not Fiduciary for Holders of Senior Indebtedness 45
SECTION 10.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights...................... 46
SECTION 10.14 Article 10 Applicable to Paying Agents.................. 46
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege.................................... 46
SECTION 11.02 Conversion Procedure.................................... 48
SECTION 11.03 Fractional Shares....................................... 48
SECTION 11.04 Taxes on Conversion..................................... 49
SECTION 11.05 Company to Provide Stock................................ 49
SECTION 11.06 Adjustment for Change in Capital Stock.................. 49
SECTION 11.07 Adjustment for Rights Issue............................. 50
SECTION 11.08 Adjustment for Other Distributions...................... 51
SECTION 11.09 When Adjustment May Be Deferred........................ 54
SECTION 11.10 When No Adjustment Required............................. 54
SECTION 11.11 Notice of Adjustment.................................... 54
SECTION 11.12 Voluntary Increase...................................... 54
SECTION 11.13 Notice of Certain Transactions.......................... 55
SECTION 11.14 Reorganization of Company; Special Distributions........ 56
SECTION 11.15 Company Determination Final............................. 56
SECTION 11.16 Trustee's Adjustment Disclaimer......................... 56
SECTION 11.17 Simultaneous Adjustments................................ 56
SECTION 11.18 Successive Adjustments.................................. 56
SECTION 11.19 Rights Issued in Respect of Class A
Common Stock Issued Upon Conversion................... 56
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act Controls............................ 57
SECTION 12.02 Notices................................................. 57
SECTION 12.03 Communication by Holders with Other Holders............. 58
SECTION 12.04 Certificate and Opinion as to Conditions Precedent...... 58
SECTION 12.05 Statements Required in Certificate or Opinion........... 58
SECTION 12.06 Separability Clause..................................... 59
SECTION 12.07 Rules by Trustee, Paying Agent, Conversion
Agent and Registrar................................... 59
SECTION 12.08 Legal Holidays.......................................... 59
- iv -
<PAGE>
SECTION 12.09 Governing Law........................................... 59
SECTION 12.10 No Recourse Against Others.............................. 59
SECTION 12.11 Successors.............................................. 59
SECTION 12.12 Multiple Originals...................................... 59
EXHIBIT A - Form of Security
- v -
<PAGE>
THIS INDENTURE, dated as of ____________________, 199__, is between
BERGEN BRUNSWIG CORPORATION, a New Jersey corporation (the "Company"), and
CHEMICAL TRUST COMPANY OF CALIFORNIA, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Liquid Yield
Option(TM) Notes due _____ (Zero Coupon - Subordinated) (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control", when used with respect to any specified person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms ''controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board or any committee of officers of
the Company acting pursuant to authority granted by such board or any committee
of such board.
"Business Day" means each day of the year on which banking institutions
are not required or authorized to close in the City of New York or at the
principal corporate trust office of the Trustee.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) capital stock issued by that
corporation.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"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.
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(TM) Trademark of Merrill Lynch & Co., Inc.
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"Debt" means with respect to any person at any date, without
duplication, (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to capitalized leases, (v) all Debt of
others for the payment of which such person is responsible or liable as obligor
or guarantor and (vi) all obligations of such person with respect to letters of
credit or bankers' acceptances issued for the account of such person or with
respect to interest rate protection agreements or currency exchange or purchase
agreements and (vii) all obligations of such person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
person and all obligations of such person under any title retention agreement.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Event of Default" means the events defined as "Events of Default" in
Section 6.01.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"Officer" means the Chairman, the President, any Vice President, the
Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of
the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 12.04 and 12.05, signed in the name of the
Company by its Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 12.04 and 12.05, from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of, or counsel to, the Company or
the Trustee.
"Original Issue Discount" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
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"Principal" or "Principal Amount" of a Security means the principal
amount due at the Stated Maturity of the Security as set forth on the face of
the Security.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of the Securities in accordance with the terms of the Securities
and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 5 of the Securities.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Liquid Yield Option(TM) Notes
due _____ (Zero Coupon-Subordinated), as amended or supplemented from time to
time in accordance with the terms hereof, issued under this Indenture.
"Securityholder" or "Holder" means a person in whose name a Security is
registered on the Registrar's books.
"Stated Maturity", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of such
Security is due and payable.
"Subsidiary" means a corporation of which a majority of the Capital
Stock having voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation is directly or indirectly owned by
(i) the Company, (ii) the Company and one or more Subsidiaries or (iii) one or
more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended, and as in
affect on the date of this Indenture, except as provided in Section 9.03.
"trading day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Class A Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Class A Common Stock is then listed
or, if the Class A Common Stock is not listed on a national or regional
securities exchange, on the National Association of Securities Dealers Automated
Quotation System or, if the Class A Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotation System, on the principal
other market on which the Class A Common Stock is then traded.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
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SECTION 1.02. Other Definitions.
Term Defined in
---- Section
----------
"Average Quoted Price"............................................ 11.01
"Bankruptcy Law".................................................. 6.01
"cash"............................................................ 3.08(b)
"Class A Common Stock"............................................ 3.08(b)
"Company Notice".................................................. 3.08(e)
"Company Notice Date"............................................. 3.08(c)
"Conversion Agent"................................................ 2.03
"Conversion Date"................................................. 11.02
"Conversion Rate"................................................. 11.01
"Custodian"....................................................... 6.01
"Event of Default"................................................ 6.01
"Exchange Act".................................................... 3.08(d)
"Ex-Dividend Time"................................................ 11.01
"Extraordinary Cash Dividend"..................................... 11.08
"Legal Holiday"................................................... 12.08
"Market Price".................................................... 3.08(d)
"Notice of Default"............................................... 6.01
"Over-Allotment Option"........................................... 2.02
"Pari Passu Debt"................................................. 10.01
"Paying Agent".................................................... 2.03
"Purchase Date"................................................... 3.08(a)
"Purchase Notice"................................................. 3.08(a)
"Purchase Price".................................................. 3.08(a)
"Quoted Price".................................................... 11.01
"Registrar"....................................................... 2.03
"Rights".......................................................... 3.08(d)
"Rights Agreement"................................................ 3.08(d)
"Sale Price"...................................................... 3.08(d)
"Securities Act".................................................. 3.08(d)
"Senior Indebtedness"............................................. 10.01
"Time of Determination"........................................... 11.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission'' means the SEC.
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"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
from time to time in the United States of America;
(3) ''or'' is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company and the Trustee). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
SECTION 2.02. Execution and Authentication. The Securities shall be
executed on behalf of the Company by its Chairman, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the Issue Date of such Securities.
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 duly
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.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount of up to $___,000,000 upon a Company
Order without any further action by the Company; [provided, however, that in the
event that the Company sells any Securities pursuant to the Underwriter's
over-allotment option (the "Over-Allotment Option") granted pursuant to Section
_____ of the Underwriting Agreement between the Company and __________ dated
_____________, 199__, then the Trustee shall authenticate and deliver Securities
for original issue in an aggregate Principal Amount of up to $___,000,000 plus
up to $___,000,000 aggregate Principal Amount of Securities sold pursuant to the
Over-Allotment Option upon a Company Order without any further action by the
Company.] The aggregate Principal Amount of Securities outstanding at any time
may not exceed the amount set forth in the foregoing sentence, subject to the
proviso set forth therein, except as provided in Section 2.07. The Securities
shall be issued only in registered form without coupons and only in
denominations of $1,000 in Principal Amount and any integral multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent. The term
Conversion Agent includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (if not the Trustee).
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee and the Holders of the name
and address of any such agent and of any change in the office or agency referred
to in Section 4.05. If the Company fails to maintain a Registrar, Paying Agent
or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
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The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent to Hold Money and Securities in Trust. In
accordance with Section 4.01 and except as otherwise provided herein, prior to
or on each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money or, if permitted by the terms
hereof, securities sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and securities held by the Paying Agent
for the making of payments in respect of the Securities and shall notify the
Trustee in writing of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
and securities so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money and
securities held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money and securities
held by it to the Trustee and to account for any funds and securities disbursed
by it. Upon doing so, the Paying Agent shall have no further liability for the
money or securities.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable, the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, each obligor upon the Securities (including the Company) shall cause
to be furnished to the Trustee at least semiannually on _________ and __________
a list containing all information in the possession or control of each such
obligor, or any of its Paying Agents, as to the names and addresses of Holders
dated within 15 days of the date on which the list is furnished and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Transfer and Exchange. Upon surrender for registration
of transfer of any Security, together with a written instrument of transfer
satisfactory to the Trustee duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at the office or agency of
the Company designated as Registrar or co-registrar pursuant to Section 2.03 or
at the office or agency referred to in Section 4.05, 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 any authorized
denomination or denominations, of a like aggregate Principal Amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Trustee duly executed
by the Securityholder or such Securityholder's attorney duly authorized in
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writing, at such office or agency. 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.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice has been given
and not withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
SECTION 2.07. Replacement Securities. If (a) any mutilated Security
is surrendered to the Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount, 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, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, 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 benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. Outstanding Securities; Determinations of Holders'
Action. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen Securities for which
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the Trustee has authenticated and delivered a new Security in lieu thereof or
which have been paid pursuant to Section 2.07 and those described in this
Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite Principal
Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or on the
Stated Maturity, money or securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and Original Issue Discount and interest, if any,
on such Securities shall cease to accrue and all other rights of the Holder
shall terminate (other than the right to receive the applicable Principal
Amount, Redemption Price or Purchase Price, as the case may be, upon delivery of
the Security in accordance with the terms of this Indenture); 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.
If a Security is converted in accordance with Article 11, then from and
after the Conversion Date such Security shall cease to be outstanding and
Original Issue Discount and interest, if any, shall cease to accrue on such
Security.
SECTION 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03 or
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4.05, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. Cancellation. All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article 3, conversion pursuant
to Article 11, or registration of transfer or exchange shall, if surrendered to
any person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
destroyed by the Trustee in accordance with its standard procedures and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.11. 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 the Security or the payment of the Issue Price plus accrued
Original Issue Discount or any Redemption Price or Purchase Price in respect
thereof, and interest thereon, for the purpose of conversion and for all other
purposes whatsoever, whether or not such Security is 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 2.12. Acts of Holders. (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, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of 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 conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 2.12.
(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
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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 ownership of Securities shall be proved by the Register.
(d) 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.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage or amount of
Securities outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose, the Securities outstanding shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notices to Trustee. The Company, at
its option, may redeem the Securities for cash in accordance with the provisions
of paragraphs 5 and 7 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Principal Amount of Securities to
be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 at least 30 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee). If fewer than all the Securities
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall not be
less than 10 days after the date of notice to the Trustee.
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SECTION 3.02. Selection of Securities to Be Redeemed. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange on which the Securities are then listed). The Trustee shall make the
selection not more than 60 days before the Redemption Date from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the Principal Amount of Securities that have
denominations larger than $1,000. Securities and portions of Securities the
Trustee selects shall be in Principal Amounts of $1,000 or an integral multiple
of $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Security so selected, the converted portion
of such Security shall be deemed (so far as may be), solely for purposes of
determining the aggregate Principal Amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.
SECTION 3.03. Notice of Redemption. At least 15 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed in the manner provided in Section 12.02.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent and
of the office or agency referred to in Section 4.05;
(5) that Securities called for redemption may be converted at any
time before the close of business on the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
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(7) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to collect
the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts of the particular Securities to be
redeemed;
(9) that, unless the Company defaults in making such redemption
payment, Original Issue Discount on securities called for redemption, and
interest, if any, will cease to accrue on and after the Redemption Date; and
(10) the CUSIP number of such Security, if any.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date stated in the notice and at the Redemption Price stated in
the notice except for Securities which are converted in accordance with the
terms of this Indenture.
Upon the later of the Redemption Date or the date such Securities are
surrendered to the Paying Agent or at the office or agency referred to in
Section 4.05, such Securities called for redemption shall be paid at the
Redemption Price stated in the notice.
SECTION 3.05. Deposit of Redemption Price. Prior to or on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption Price
of all Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation or have been converted. The Paying
Agent shall as promptly as practicable return to the Company any money, with
interest, if any, thereon (subject to the provisions of Section 7.01(f)), not
required for that purpose because of conversion of Securities pursuant to
Article 11. If such money is then held by the Company or a Subsidiary or an
Affiliate of the Company in trust and is not required for such purpose, it shall
be discharged from such trust.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Paying Agent in trust for the Securityholders whose
Securities are to be so purchased, on or before the close of business on the
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Redemption Date, an amount that, together with any amounts deposited with the
Trustee by the Company for redemption of such Securities, is not less than the
Redemption Price, together with interest, if any, accrued to the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article 3, the obligation of the Company to pay the Redemption Price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 11) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the Redemption Date, subject to
payment of the above amount as aforesaid. The Paying Agent shall hold and pay
to the Holders whose Securities are selected for redemption any such amount paid
to it in the same manner as it would moneys deposited with it by the Company for
the redemption of Securities. Without the Paying Agent's prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Paying Agent from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08. Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company pursuant to
paragraph 6 of the Securities as of ______________ ____, ______,
________________ ____, ________, and _______________ _____, _________ (each, a
"Purchase Date"), at the purchase price specified therein (each, a "Purchase
Price"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or agency referred
to in Section 4.05 by the Holder of a written notice of purchase (a
"Purchase Notice") at any time from the opening of business on the date that
is 20 Business Days prior to a Purchase Date until the close of business on
such Purchase Date, stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount of the Security which
the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof,
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(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of
the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such Purchase Date,
in whole or in part, in Class A Common Stock but the Purchase Price
shall ultimately be payable to such Holder entirely in cash because any
of the conditions to payment of the Purchase Price in Class A Common
Stock is not satisfied prior to or on the Purchase Date, as set forth
in Section 3.08(d), whether such Holder elects (x) to withdraw such
Purchase Notice as to some or all of the Securities to which such
Purchase Notice relates (stating the Principal Amount and certificate
numbers of the Securities as to which such withdrawal shall relate), or
(y) to receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which such Purchase Notice relates;
and
(2) delivery of such Security prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying
Agent or to the office or agency referred to in Section 4.05, such delivery
being a condition to receipt by the Holder of the Purchase Price therefor;
provided, however, that such Purchase Price shall be so paid pursuant to
this Section 3.08 only if the Security so delivered shall conform in all
respects to the description thereof in the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.09,
fails to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Securities subject
to such Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Business Day
following the Purchase Date and the time of delivery of the Security to the
Paying Agent in the manner required by this Section 3.08.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent, or the office or agency referred to in Section 4.05, the
Purchase Notice contemplated by this Section 3.08(a) shall have the right at any
time prior to the close of business on the Purchase Date to withdraw such
Purchase Notice by delivery of a written notice of withdrawal to the Paying
Agent or such office or agency in accordance with Section 3.09.
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The Paying Agent shall promptly notify the Company of its receipt of
any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price.
The Company may elect with respect to any Purchase Date to pay the Purchase
Price in respect of the Securities to be purchased pursuant to Section 3.08(a)
as of such Purchase Date, in U.S. legal tender ("cash") or Class A Common Stock,
or in any combination of cash and Class A Common Stock, subject to the
conditions set forth in Sections 3.08(c) and (d). The Company shall designate,
in the Company Notice delivered pursuant to Section 3.08(e), whether the Company
will purchase the Securities for cash or Class A Common Stock, or, if a
combination thereof, the percentages of the Purchase Price of Securities in
respect of which it will pay in cash or Class A Common Stock; provided that the
Company will pay cash for fractional interests in Class A Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities subject to purchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each Holder whose Securities are purchased pursuant to this Section
3.08 shall receive the same percentage of cash or Class A Common Stock in
payment of the Purchase Price for such Securities, except (i) as provided in
Section 3.08(d) with regard to the payment of cash in lieu of fractional
interests in Class A Common Stock and (ii) in the event that the Company is
unable to purchase the Securities of a Holder or Holders for Class A Common
Stock because any necessary qualifications or registrations of the Class A
Common Stock under applicable state securities laws cannot be obtained, the
Company may purchase the Securities of such Holder or Holders for cash. The
Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company has
given its Company Notice to Securityholders except pursuant to this Section
3.08(b) or Section 3.08(d) in the event of a failure to satisfy, prior to the
close of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Class A Common Stock.
At least two Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Class A Common Stock, that the conditions
to such manner of payment set forth in Section 3.08(d) have been or will be
complied with, and
(iv) whether the Company desires the Trustee to give the Company Notice
required by Section 3.08(e).
"Class A Common Stock" shall mean the shares of Class A Common Stock,
par value $1.50 per share, of the Company as it exists on the date of this
Indenture or any other shares of Capital Stock of the Company into which the
Class A Common Stock shall be reclassified or changed.
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(c) Purchase with Cash. At the option of the Company, the Purchase
Price of Securities in respect of which a Purchase Notice pursuant to Section
3.08(a) has been given, or a specified percentage thereof, may be paid by the
Company with cash equal to the aggregate Purchase Price, or such specified
percentage thereof, as the case may be, of such Securities. If the Company
elects to purchase Securities with cash, a Company Notice as provided in Section
3.08(e) shall be sent to Holders (and to beneficial owners as required by
applicable law) not less than 20 Business Days prior to the Purchase Date (the
''Company Notice Date").
(d) Payment by Issuance of Class A Common Stock. At the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Class A
Common Stock equal to the quotient obtained by dividing (i) the amount of cash
to which the Securityholders would have been entitled had the Company elected to
pay all or such specified percentage, as the case may be, of the Purchase Price
of such Securities in cash by (ii) the Market Price of a share of Class A Common
Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Class A Common Stock
in payment of the Purchase Price. Instead, the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
Each share of Class A Common Stock issued upon purchase of Securities
pursuant to Section 3.08(a) shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Class A Common Stock issued upon such purchase shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated as of February 8, 1994, between the Company and Chemical
Trust Company of California, as Rights Agent (the "Rights Agreement"), as in
effect at the time of such purchase.
If the Company elects to purchase the Securities by the issuance of
shares of Class A Common Stock, a Company Notice as provided in Section 3.08(e)
shall be sent to the Holders (and to beneficial owners as required by applicable
law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the Securities
pursuant to this Section 3.08 through the issuance of shares of Class A Common
Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the Securities with Class A
Common Stock as provided herein;
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(ii) the registration of the shares of Class A Common Stock to be
issued in respect of the payment of the specified percentage of the Purchase
Price under the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if
required, unless there exists an applicable exemption to registration;
(iii) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Class A Common Stock are in conformity with this Indenture and (B) the
shares of Class A Common Stock to be issued by the Company in payment of the
specified percentage of the Purchase Price in respect of Securities have
been duly authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the specified percentage of the Purchase Price
in respect of Securities, will be validly issued, fully paid and
nonassessable, and, in the case of such Officers' Certificate, stating that
conditions (i), (ii) and (iii) above have been satisfied and, in the case of
such Opinion of Counsel, stating that conditions (ii) and (iii) above have
been satisfied and that, to the best of such counsel's knowledge, such
shares of Class A Common Stock are free of preemptive rights.
Such Officers' Certificate shall also set forth the number of shares of Class A
Common Stock to be issued for each $1,000 Principal Amount of Securities and the
Sale Price of a share of Class A Common Stock on each trading day during the
period during which the Market Price is calculated and ending on the Purchase
Date. The Company may elect to pay in Class A Common Stock only if the
information necessary to calculate the Market Price is reported in a daily
newspaper of national circulation. If such conditions are not satisfied with
respect to a Holder or Holders prior to or on the Purchase Date and the Company
elected to purchase the Securities to be purchased as of such Purchase Date
pursuant to this Section 3.08 through the issuance of shares of Class A Common
Stock, the Company shall pay the entire Purchase Price in respect of such
Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Price of the Class A
Common Stock for the five trading day period ending on (if the third Business
Day prior to the applicable Purchase Date is a trading day or, if not, then on
the last trading day prior to) the third Business Day prior to the Purchase
Date, as appropriately adjusted by the Board (which adjustment shall be
conclusive and shall be evidenced by a Board Resolution) to take into account
the occurrence, during the period commencing on the first of such trading days
during such five trading day period and ending on such Purchase Date, of any
event described in Section 11.06, 11.07 or 11.08; subject, however, to the
conditions set forth in Sections 11.09 and 11.10. The "Sale Price" of the Class
A Common Stock on any date means the closing per share sale price (or if no
closing sale price is reported, the average of the bid and asked prices or, if
more than one, in either case, the average of the average bid and average asked
prices) on such date as reported in the composite transactions for the principal
United States securities exchange on which the Class A Common Stock is traded
or, if the Class A Common Stock is not listed on a United States national or
regional stock exchange, as reported by the National Association of Securities
Dealers Automated Quotation System.
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(e) Notice of Election. Company Notices of election to purchase with
cash, or Class A Common Stock, or any combination thereof, shall be sent to the
Holders (and to beneficial owners as required by applicable law) in the manner
provided in Section 12.02 at the time specified in Section 3.08(c) or (d), as
applicable (a "Company Notice"). Such Company Notices shall state the manner of
payment elected and shall contain the following information:
In the event the Company has elected to pay a Purchase Price (or a
specified percentage thereof) with Class A Common Stock, the Company Notice
shall:
(1) state that each Holder will receive Class A Common Stock with a
Market Price determined as of a specified date prior to the Purchase Date
equal to such specified percentage of the Purchase Price of the Securities
held by such Holder (except any cash amount to be paid in lieu of fractional
shares); and
(2) set forth the method of calculating the Market Price and state
that because the Market Price of Class A Common Stock will be determined
prior to the Purchase Date, Holders will bear the market risk with respect
to the value of the Class A Common Stock to be received from the date such
Market Price is determined to the Purchase Date.
In any case, each Company Notice shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion Agent
and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given may
be converted into Class A Common Stock only if the applicable Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent or to the
office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities; and
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(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.08 (a)(1)(D) or Section 3.09).
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Class A Common
Stock to be issued for each $1,000 Principal Amount of Securities, the Company
will publish such determination in a daily newspaper of national circulation.
(f) Covenants of the Company. All shares of Class A Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.
The Company shall use its best efforts to list or cause to have quoted
any shares of Class A Common Stock to be issued on each national securities
exchange or over-the-counter or other domestic market on which the Class A
Common Stock is then listed or quoted.
(g) Procedure upon Purchase. On the Business Day following the
Purchase Date, the Company shall deposit with the Paying Agent cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests, as
applicable), or shares of Class A Common Stock, or a combination thereof, as
applicable, sufficient to pay the aggregate Purchase Price of the Securities to
be purchased pursuant to this Section 3.08. As soon as practicable after the
later of the Business Day following the Purchase Date and the date such
Securities are surrendered to the Paying Agent or the office or agency referred
to in Section 4.05, the Company shall deliver to each Holder entitled to receive
Class A Common Stock, through the Paying Agent, a certificate for the number of
full shares of Class A Common Stock, as applicable, issuable in payment of such
Purchase Price and cash in lieu of any fractional interests. The person in
whose name the certificate for Class A Common Stock is registered shall be
treated as a holder of record of such Class A Common Stock following the related
Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be
made for dividends on the Class A Common Stock the record date for which
occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Class A Common Stock,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of shares of Class A Common Stock. However, the Holder shall
pay any such tax which is due because the Holder requests the shares of Class A
Common Stock to be issued in a name other than the Holder's name. The Paying
Agent may refuse to deliver the certificates representing the Class A Common
Stock being issued in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because the shares of
Class A Common Stock are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax withholding required by law or
regulations.
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SECTION 3.09. Effect of Purchase Notice. Upon receipt by the Paying
Agent of the Purchase Notice specified in Section 3.08(a), the Holder of the
Security in respect of which such Purchase Notice was given, shall (unless such
Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Purchase Price with respect to such
Security. Such Purchase Price shall be paid to such Holder promptly following
the later of (x) the Business Day following the Purchase Date with respect to
such Security (provided the conditions in Section 3.08(a) have been satisfied)
and (y) the time of delivery of such Security to the Paying Agent or the office
or agency referred to in Section 4.05 by the Holder thereof in the manner
required by Section 3.08(a) and (g). Securities in respect of which a Purchase
Notice has been given by the Holder thereof may not be converted into shares of
Class A Common Stock on or after the date of the delivery of such Purchase
Notice, unless such Purchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent or the office or agency
referred to in Section 4.05 at any time prior to the close of business on the
Purchase Date to which it relates specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted,
(2) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
of (i) a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(a)(1)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying Agent as set
forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the issuance of Class A Common Stock in payment of the
Purchase Price, including cash in lieu of any fractional shares) if there has
occurred (prior to, on or after the giving, by the Holders of such Securities,
of the required Purchase Notice) and is continuing an Event of Default (other
than a default in the payment of the Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities with respect to which (a) a Purchase Notice has been
withdrawn in compliance with this Indenture or (b) a purchase is prohibited
pursuant to the first sentence of this paragraph.
SECTION 3.10. Deposit of Purchase Price. On or before the Business
Day following a Purchase Date, the Company shall deposit with the Trustee or
with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
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either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.04) an amount of cash and/or Class A Common Stock, if
permitted hereunder, sufficient to pay the aggregate Purchase Price of all the
Securities or portions thereof which are to be purchased as of such Purchase
Date.
SECTION 3.11. Securities Purchased in Part. Any Security which is to
be purchased only in part shall be surrendered at the office of the Paying Agent
or the office or agency referred to in Section 4.05 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of the
Security so surrendered which is not purchased.
SECTION 3.12. Covenant to Comply With Securities Laws Upon Purchase of
Securities. In connection with any offer to purchase or purchase of Securities
under Section 3.01 or 3.08 hereof, the Company shall (i) comply with Rule 13e-4
and Rule 14e-l (which term, as used herein, includes any successor provision
thereto) under the Exchange Act, if applicable, (ii) file the related Schedule
13E-4 (or any successor schedule, form or report) under the Exchange Act, if
applicable, and (iii) otherwise comply with all Federal and state securities
laws so as to permit the rights and obligations under Sections 3.01 and 3.08 to
be exercised in the time and in the manner specified in Sections 3.01 and 3.08.
SECTION 3.13. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Class A Common Stock,
together with interest on such cash, if any, or dividends on such shares of
Class A Common Stock, if any, (subject to the provisions of Section 7.01(f))
held by them for the payment of a Purchase Price that remain unclaimed as
provided in paragraph 13 of the Securities; provided, however, that to the
extent that the aggregate amount of cash or shares of Class A Common Stock
deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase
Price of the Securities or portions thereof to be purchased, then promptly after
the Business Day following the Purchase Date, the Trustee shall return any such
excess to the Company together with interest or dividends, if any, thereof
(subject to the provisions of Section 7.01(f)).
SECTION 3.14. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain of statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price
and interest, if any, shall be considered paid on the applicable date due (which
in the case of a Purchase Price is the Business Day following the applicable
Purchase Date, as set forth in Section 3.08) if on such date the Trustee or the
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Paying Agent holds, in accordance with this Indenture, cash or securities, if
permitted hereunder, sufficient to pay all such amounts then due.
The Company shall pay interest on overdue amounts at the rate set forth
in paragraph 1 of the Securities and it shall pay interest on overdue interest
at the same rate compounded semiannually (to the extent that the payment of such
interest shall be legally enforceable), which interest on overdue interest shall
accrue from the date such amounts became overdue. The accrual of such interest
on overdue amounts shall be in lieu of, and not in addition to, the continued
accrual of Original Issue Discount.
SECTION 4.02. SEC Reports. The Company shall file with the Trustee
and the SEC, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the TIA at
the times and in the manner provided pursuant to the TIA; provided that any such
information, documents or reports required to be filed with the SEC 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 SEC.
The Company shall file with the Trustee, within 15 days after it files
such annual and quarterly reports, information, documents and other reports with
the SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a).
SECTION 4.03. Compliance Certificate. Each obligor (including the
Company) shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on September
30, ____) a certificate from such obligor's principal executive officer,
principal financial officer or principal accounting officer, stating that a
review of the activities of the Company during such year and of performance
under this Indenture and under the terms of the Securities has been made under
his supervision and whether or not the signer knows of any Default that occurred
during such period. If such certificate evidences knowledge of any Default,
such certificate shall describe the Default and its current status.
SECTION 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. Maintenance of Office or Agency. The Company will
maintain in the City of San Francisco, California, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of the Trustee at
50 California Street, 10th Floor, San Francisco, California 94111, Attention:
Corporate Trust Administration, shall be such office or agency for all of the
aforesaid purposes unless the Company shall maintain some other office or agency
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for such purposes and shall give prompt written notice to the Trustee of the
location, and any change in the location, of such other office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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
San Francisco, California for such purposes.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as
an entirety (i) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States or any State thereof or
the District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) immediately after giving effect to such transaction and the
assumption contemplated by clause (a) above, no Default shall have occurred
and be continuing; and
(c) the Company shall have 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 satisfied.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of (i) a lease of its properties and assets substantially as an
entirety and (ii) obligations the Company may have under a supplemental
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indenture pursuant to Section 11.14, the Company shall be discharged and
released from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor person and discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An Event of Default, occurs if:
(1) the Company defaults in the payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price or Purchase Price
(and, with respect to a default in the payment of a Purchase Price, such
default continues for a period of three Business Days) on any Security when
the same becomes due and payable at its Stated Maturity, upon redemption,
upon declaration, when due for purchase by the Company or otherwise, whether
or not such payment shall be prohibited by Article 10;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1)
above) and such failure continues for 90 days after receipt by the Company
of a Notice of Default;
(3) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the Company
under any Bankruptcy Law, and such decree or order shall have continued
undischarged and unstayed for a period of 90 consecutive days; or a decree
or order of a court having jurisdiction in the premises for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged and unstayed by a period of
90 consecutive days; or
(4) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under any Bankruptcy Law, or shall consent to the filing of
any such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or of
its property or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they
become due; or
(5)(i) a default occurs under any instrument or instruments (including
this Indenture) under which there is at the time outstanding, or by which
there may be secured or evidence, any indebtedness of the Company or any
Subsidiary for money borrowed by the Company or any Subsidiary or any
guarantee of payment by the Company or any Subsidiary of any obligation of
any Person which results in acceleration (whether by declaration or
automatically) of, or the nonpayment at maturity (after giving effect to any
applicable grace period) of, such indebtedness or guarantee in an aggregate
amount exceeding $15,000,000, in which case the Company shall immediately
give notice to the Trustee of such acceleration or nonpayment and (ii) there
shall have been a failure to cure such default or to discharge all such
defaulted indebtedness or guarantee or such default is not otherwise waived
and such acceleration has not been rescinded or annulled within fifteen (15)
days after receipt by the Company from the Trustee or by the Company and the
Trustee from the Holders of at least 25% in principal amount of the
Securities then Outstanding of a written notice thereof, by registered or
certified mail, and stating that such notice is a "Notice of Default"
hereunder.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
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A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (2) above after
receipt of such notice. Any such notice must specify the Default, demand that
it be remedied and state that such notice is a Notice of Default.
SECTION 6.02. Acceleration. If an Event of Default occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate Principal Amount of the Securities at the time outstanding by
notice to the Company and the Trustee, may declare the Issue Price and accrued
Original Issue Discount to the date of declaration on all the Securities to be
immediately due and payable. Upon such a declaration, such Issue Price and
accrued Original Issue Discount shall be due and payable immediately. The
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Issue Price
and accrued original Issue Discount that have become due solely as a result of
acceleration and if all amounts due to the Trustee under Section 7.07 have been
paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (1) an Event of Default described
in Section 6.01(1), (2) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected or
(3) a Default under Article 11. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
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the TIA and such Section 316(a)(1)(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA and
such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, but subject to Article 10, the right of
any Holder to receive payment of the Principal Amount, Issue Price, accrued
original Issue Discount, Redemption Price, Purchase Price or interest, if any,
in respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 11, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of each such
Holder.
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SECTION 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price or interest, if any,
in respect of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of any such amount) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price or interest, if any, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article 10;
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THIRD: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be,
ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10 and shall provide the Company at
least 20 days notice of such record date. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. 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 or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Securities at
the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of
the TIA and such Section 315(e) is hereby expressly excluded from this Indenture
as permitted by the TIA.
SECTION 6.12. Waiver of Stay, Extension or Usury laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price or Purchase Price
in respect of Securities, or any interest on any such amounts, as contemplated
herein, or which may affect the covenants or the performance of this Indenture
or the Securities; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such laws 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 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
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vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and
such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or expend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
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SECTION 7.02. Rights of Trustee. Subject to its duties and
responsibilities under the TIA:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in any document, but may in its discretion
make such further inquiry or investigation into such facts or matters as it may
see fit, including examination of the books, records and premises of the
Company, personally or by agents reasonably acceptable to the Company.
(b) Before the Trustee acts or refrains from acting, it may require a
Company Order, an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Company Order, Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.01(c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(e) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such consel 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.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may became the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement (other than the Statement of Eligibility under the Trust
Indenture Act of 1939 on Form T-1 attached as an exhibit thereto) for the
Securities under the Securities Act or in the Indenture or the Securities (other
than its certificate of authentication), the acts of any prior Trustee
hereunder, or the determination as to which beneficial owners are entitled to
receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder, in the manner and to the extent provided in Section 12.02,
notice of the Default within 90 days after it occurs. Except in the case of a
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Default described in Section 6.01(1), the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders. The Trustee
shall not give notice of a Default pursuant to Section 6.01(2) until at least
ninety days have passed since its occurrence. The second sentence of this
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and
such proviso is hereby expressly excluded from this Indenture, as permitted by
the TIA. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default or of any event or condition which, with the giving of notice,
the passage or time of both, might constitute a Default or Event of Default
unless (i) the Trustee has received written notice thereof from the Company or
a Holder or (ii) a Trust Officer shall have actual knowledge thereof.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each ________ 15 beginning with the _______ 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such _______ 15 that complies with TIA Section 313(a), if required by such
Section. The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be provided to the Company and shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company agrees to notify the
Trustee in writing whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not (to the
extent permitted by law) be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request and, if required by the
Company, submission of reasonable documentation 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, advances 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
(c) to indemnify the Trustee and each of the Trustee's directors,
officers, employees, agents, successors and assigns (the "Indemnitees") for,
and to hold them harmless against, any loss, liability or expense including
taxes (other than taxes based upon, measured by, or determined by, the
income of the Trustee) incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending the Indemnitees
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder as Trustee,
Authenticating Agent, Security Registrar, Paying Agent or Conversion Agent.
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The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (c) of
this Section 7.07 within a reasonable amount of time after a Trust Officer of
the Trustee becomes aware of such claim or liability. To secure the Company's
payment obligations in this Section 7.07, the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay the Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(3) or (4), the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
notifying the Company; no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.08. The Holders
of a majority in aggregate Principal Amount of the Securities at the time
outstanding may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee (subject to the consent of the Company, such consent not to be
unreasonably withheld). The Company shall remove the Trustee if:
(1) the Trustee fails to comply with, or ceases to be eligible under,
Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification. If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, 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 TIA and this Indenture. To
the extent permitted by the TIA, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under any indenture or
indentures in each case as and to the the extent that such indenture satisfies
the requirements set forth in Section 310(b)(i) of the TIA.
The Trustee shall at all times satisfy the requirements of TIA Sections
310(a)(1) and 310(b). The Trustee hereby represents and warrants that it is
currently in compliance and at all times will remain in compliance with the
requirements of this Section 7.10. The Trustee shall have a combined capital
and surplus of at least $10,000,000 as set forth in its most recent published
annual report of condition. Neither the Company nor any Affiliate of the
Company may serve as Trustee. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of TIA Section 310(b). 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 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have became due and payable and the Company deposits with
the Trustee cash and/or Class A Common Stock, as permitted by the terms hereof,
sufficient to pay at Stated Maturity the Principal Amount of all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
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the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.02. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, provided, however, that the Trustee or such
Paying Agent, before being required to make any such return, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in the City of New York or mail to each such Holder notice that such money or
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing, any
unclaimed money or securities then remaining will be returned to the Company.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to provide for uncertificated Securities in addition to
certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended;
(4) to make any change that does not adversely affect the rights of
any Holder of an outstanding Security;
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA or any amendment thereof;
(6) to add to the covenants or obligations of the Company hereunder or
to surrender any right, power or option herein conferred upon the Company;
(7) to provide for Securities which are exchangeable for any
securities of any person and the terms and conditions upon which such
Securities will be so exchangeable; provided, however, that no such
amendment shall be made subsequent to the issuance of Securities under this
Indenture, unless such amendment is approved in accordance with Section
9.02;
(8) to add any additional Events of Dafault; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee, pursuant to the requirements of Section
7.08.
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SECTION 9.02. With Consent of Holders. With the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding, the Company and the Trustee may amend this Indenture or
the Securities. However, without the consent of each Securityholder affected,
an amendment or supplement to this Indenture or the Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with Original
Issue Discount, reduce the rate of interest referred to in paragraph 1 of
the Securities or extend the time for payment of Original Issue Discount or
interest, if any, on any Security;
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
(4) reduce the Redemption Price or Purchase Price of any Security;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Article 10 that adversely affects the rights of
any Securityholder;
(7) make any change in Section 6.04, Section 6.07 or this Section
9.02, except to increase any percentage referred to therein or herein;
(8) make any change that adversely affects the right to convert any
Security; or
(9) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 or Section 9.01 may not make any
change that adversely affects the rights under Article 10 of any holder of
Senior Indebtedness then outstanding unless the requisite holders of such Senior
Indebtedness consent to such change pursuant to the terms of such Senior
Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
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SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action becomes effective, a consent to it or
any other action by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
SECTION 9.05. Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign such
supplemental indenture. In signing such amendment the Trustee shall be entitled
to receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officer's Certificate and an opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. 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.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of a Security by such Holder's
acceptance thereof likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article 10, the indebtedness represented by
the Securities and the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price and interest, if any,
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in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any, on (a) all indebtedness of the Company (including indebtedness
of others guaranteed by the Company) (other than (w) the Securities, (x)
indebtedness outstanding under the indenture between the Company and Chemical
Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the
subordinated indentures between the Company and Chemical dated as of December 1,
1992 and January 1, 1996, respectively and (z) indebtedness as to which the
instruments creating or evidencing the same provide that such indebtedness is
not senior in right of payment to the Securities (collectively, the "Pari Passu
Debt")), whether outstanding on the date of this Indenture or hereafter created,
incurred or assumed, that is (i) for money borrowed or (ii) evidenced by a note
or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, except in the ordinary course of
business, (b) obligations of the Company as lessee under leases required to be
capitalized on the consolidated balance sheet of the Company under generally
accepted accounting principles or leases of property made as part of any sale
and leaseback transaction to which the Company is a party and (c) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligations; unless in any case referred to in clauses (a), (b) and (c), in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Securities or to any
Pari Passu Debt.
SECTION 10.02. Payment Over of Proceeds upon Dissolution, Etc. Upon
any distribution of assets of the Company 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
marshaling of assets and liabilities of the Company,
then and in such event
(1) 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 cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price or interest, if any, in respect
of the Securities; and
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(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article 10, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest, if any, on
the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 10.02, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities,
before all Senior Indebtedness is paid in full or payment thereof provided for,
and if such fact shall then 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 10 only, the words "cash, property or
securities" shall not be deemed to include shares of Capital 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 the payment
of which is subordinated, at least to the extent provided in this Article 10
with respect to the Securities, to the payment of all Senior Indebtedness which
may at the time be outstanding; provided, however, that (i) Senior Indebtedness
is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of that Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article 5 shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company for
the purposes of this Section 10.02 if the person formed by such consolidation or
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into which the Company is merged or the person which acquires by conveyance or
transfer all or substantially all of the assets of the Company, as the case may
be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 5.
SECTION 10.03. Acceleration of Securities. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.02, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities until 120 days have passed after such acceleration occurs and may
thereafter pay the Securities if this Article 10 permits the payment at that
time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 10.03, and if such facts then shall
have been known or thereafter shall have been made known to the Trustee as
provided in Section 10.10 or such Holder, as the case may be, pursuant to the
terms of this Indenture, then and in such event such payment shall be paid over
and delivered forthwith to the Company by or on behalf of the person holding
such payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 10.03 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.04. Default on Senior Indebtedness. The Company may not
make any payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price or interest, if any, in respect of
the Securities and may not acquire any Securities for cash or property (except
as otherwise provided by Article 11 and other than for Capital Stock (including
cash in lieu of any fractional shares) of the Company) if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 10.04.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the subject
of judicial proceedings; and
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this Article 10 otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 10.04, and if such fact then shall have
been known or thereafter shall have been made known to the Trustee or such
Holder, as the case may be, pursuant to the terms of this Indenture, then and in
such event such payment shall (to the extent permitted by law) be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of the Senior Indebtedness.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities into Class A Common Stock in accordance with the provisions for
conversion of such securities set forth in this Indenture, including the payment
of cash in lieu of fractional shares of Class A Common Stock in accordance with
Article 11, or in any of such Securities in the event of an occurrence of the
events described in clauses (1) and (2) of this Section 10.04.
The provisions of this Section 10.04 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.05. Payment Permitted if no Default. Nothing contained in
this Article 10 or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 10.02 or under the conditions described in
Section 10.03 or 10.04, from making payments at any time of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or interest, if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or interest, if any, as the case may be, in respect of the Securities if
the Trustee did not have, at the time provided in the proviso to the first
paragraph of Section 10.10, notice that such payment would have been prohibited
by the provisions of this Article 10.
SECTION 10.06. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article 10 (equally and ratably with the holders of all Debt of the Company
which by its express terms is subordinated to Debt of the Company to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation) to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price
or interest, if any, as the case may be, in respect of the Securities shall be
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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 or the Trustee would be entitled except for
the provisions of this Article 10, and no payments pursuant to the provisions of
this Article 10 to the Company or to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 10.07. Provisions Solely to Define Relative Rights. The
provisions of this Article 10 are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on one hand, and
the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article 10 or elsewhere in this Indenture or in the Securities is intended
to or shall
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay
to the Holders of the Securities the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price and interest, if
any, as the case may be, in respect of the Securities as and when the same
shall became due and payable in accordance with the terms of the Securities
and this Indenture and which, subject to the rights under this Article 10 of
the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 10 of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 10.08. Trustee to Effectuate Subordination. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article 10 and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
Section 10.09. 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 act or 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.
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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, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article 10
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
dispose of 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 or any other person.
SECTION 10.10. 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. Failure to give such notice shall not affect the subordination of
the Securities to Senior Indebtedness. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof at the address
specified in Section 12.02 from the Company or a holder of Senior Indebtedness
or from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be, in
respect of any Security), the notice with respect to such money provided for in
this Section 10.10, 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 three Business Days prior to such date.
Subject to the provisions of Section 7.01, 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 or
agent on behalf of such holder) to establish that such notice has been given by
a holder of Senior Indebtedness (or a trustee or agent on behalf of any such
holder). 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 10, 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 10, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
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of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 10.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Section 7.01, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of 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 10.
SECTION 10.12. 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
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 10 or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 12.02. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article 10 and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 10.13. 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 10 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 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
SECTION 10.14. Article 10 Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
10 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 10 in
addition to or in place of the Trustee; provided, however, that Sections 10.10
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and 10.12 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent.
ARTICLE 11
CONVERSION
SECTION 11.01. Conversion Privilege. A Holder of a Security may
convert such Security into Class A Common Stock at any time during the period
stated in paragraph 9 of the Securities. The number of shares of Class A Common
Stock issuable upon conversion of a Security per $1,000 of Principal Amount
thereof (the ''Conversion Rate") shall be that set forth in paragraph 9 in the
Securities, subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of a Security if
the portion is $l,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
"Quoted Price", on a particular day, means the last reported per share
sales price (or, if no sales price is reported, the average of the bid and asked
prices or, if more than one in either case, the average of the average bid and
average asked prices) on such day of the Class A Common Stock on the New York
Stock Exchange or, in the event shares of Class A Common Stock are not listed on
the New York Stock Exchange, such other national or regional stock exchange upon
which the Class A Common Stock is listed, or, if the shares of Class A Common
Stock are not listed on a national or regional stock exchange, as quoted on the
National Association of Securities Dealers Automated Quotation System or by the
National Quotation Bureau, Incorporated. In the absence of one or more such
quotations, the Company shall be entitled to determine the Quoted Price on the
basis of such quotations as it considers appropriate.
"Average Quoted Price" means the average of the Quoted Prices of the
Class A Common Stock for the shortest of
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Quoted Price is
being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Quoted
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Quoted Price is
being calculated, or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, or warrants or options or (b) distribution, in each case, for which
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an adjustment is required by the provisions of Section 11.06(4), 11.07 or
11.08 and (y) proceeding through the last full trading day prior to the
Time of Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Quoted Price is being
calculated.
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which "Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Quoted Price" pursuant to
the definition in the preceding sentence, "Average Quoted Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Quoted Price of the Class A Common Stock during such
period.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Sections 11.07 and 11.08 apply
and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other national or regional exchange or
market on which the Class A Common Stock is then listed or quoted.
SECTION 11.02. Conversion Procedure. To convert a Security a Holder
must satisfy the requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a certificate
for the number of full shares of Class A Common Stock issuable upon the
conversion and cash in lieu of any fractional share determined pursuant to
Section 11.03. The person in whose name the certificate is registered shall be
treated as a stockholder of record on and after the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Class A Common Stock upon such
conversion as the record holder or holders of such shares of Class A Common
Stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of Class A Common Stock as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; provided
further that such conversion shall be at the Conversion Rate in effect on the
date that such Security shall have been surrendered for conversion, as if the
stock transfer books of the Company had not been closed. Upon conversion of a
Security, such person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on or other
distribution with respect to any Class A Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date of the Security to the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
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Holder thereof through delivery of the Class A Common Stock (together with the
cash payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the
number of shares of Class A Common Stock issuable upon the conversion shall be
based on the total Principal Amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be surrendered
to that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 11.03. Fractional Shares. The Company will not issue a
fractional share of Class A Common Stock upon conversion of a Security.
Instead, the Company will deliver cash for the current market value of the
fractional share. The current market value of a fractional share shall be
determined to the nearest 1/1000th of a share by multiplying the Quoted Price,
on the last trading day prior to the Conversion Date, of a full share by the
fractional amount and rounding the product to the nearest whole cent.
SECTION 11.04. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Class A Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificates representing the Class A
Common Stock being issued in a name other than the Holder's name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
SECTION 11.05. Company to Provide Stock. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Class A Common Stock a sufficient
number of shares of Class A Common Stock to permit the conversion of the
Securities for shares of Class A Common Stock.
All shares of Class A Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the offer and delivery of shares of Class A Common
Stock upon conversion of Securities, if any, and will list or cause to have
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quoted such shares of Class A Common Stock on each national securities exchange
or in the over-the-counter market or such other market on which the Class A
Common Stock is then listed or quoted.
SECTION 11.06. Adjustment for Change in Capital Stock. If, after the
Issue Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on its Class A Common
Stock in shares of its Class A Common Stock;
(2) subdivides its outstanding shares of Class A Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Class A Common Stock into a
smaller number of shares;
(4) pays a dividend or makes a distribution on its Class A Common
Stock in shares of its Capital Stock (other than Class A Common Stock or
rights, warrants, or options for its Capital Stock); or
(5) issues by reclassification of its Class A Common Stock any shares of
its Capital Stock (other than rights, warrants, or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes or series of Capital Stock of
the Company, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class or series of
Capital Stock as is contemplated by this Article 11 with respect to the Class A
Common Stock, on terms comparable to those applicable to Class A Common Stock in
this Article 11.
SECTION 11.07. Adjustment for Rights Issue. If after the Issue Date
of the Securities, the Company distributes any rights, warrants or options to
all holders of its Class A Common Stock entitling them, for a period expiring
within 60 days after the record date for such distribution, to purchase shares
of Class A Common Stock at a price per share less than the Quoted Price as of
the Time of Determination, the Conversion Rate shall be adjusted in accordance
with the formula:
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(O + N)
R' = R X ---------------------
(O + (N X P) / M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Class A Common Stock outstanding on
the record date for the distribution to which this Section
11.07 is being applied.
N = the number of additional shares of Class A Common Stock
offered pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Quoted Price, minus, in the case of (i) a
distribution to which Section 11.06(4) applies or (ii) a
distribution to which Section 11.08 applies, for which, in
each case, (x) the record date shall occur on or before the
record date for the distribution to which this Section 11.07
applies and (y) the Ex-Dividend Time shall occur on or after
the date of the Time of Determination for the distribution
to which this Section 11.07 applies, the fair market value
(on the record date for the distribution to which this
Section 11.07 applies) of the
(1) Capital Stock of the Company distributed in respect of
each share of Class A Common Stock in such Section
11.06(4) distribution and
(2) assets of the Company or debt securities or any rights,
warrants or options to purchase securities of the
Company distributed in respect of each share of Class A
Common Stock in such Section 11.08 distribution.
The Board of Directors shall determine fair market values for the
purposes of this Section 11.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 11.07 applies.
If all of the shares of Class A Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Class A Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 11.07 if the application
of the formula stated above in this Section 11.07 would result in a value of R'
that is less than the value of R.
SECTION 11.08. Adjustment for Other Distributions. If, after the
Issue Date of the Securities, the Company distributes to all holders of its
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Class A Common Stock any of its assets, or debt securities or any rights,
warrants or options to purchase securities of the Company (including securities
or cash, but excluding (x) distributions of Capital Stock referred to in Section
11.06 and distributions of rights, warrants or options referred to in Section
11.07 and (y) cash dividends or other cash distributions that are paid out of
consolidated current net earnings or earnings retained in the business as shown
on the books of the Company unless such cash dividends or other cash
distributions are "Extraordinary Cash Dividends"), the Conversion Rate shall be
adjusted, subject to the provisions of the last paragraph of this Section 11.08,
in accordance with the formula:
M
R' = R X ---------
M - F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Quoted Price, minus, in the case of a
distribution to which Section 11.06(4) applies, for which
(i) the record date shall occur on or before the record date
for the distribution to which this Section 11.08 applies and
(ii) the Ex-Dividend Time shall occur on or after the date
of the Time of Determination for the distribution to which
this Section 11.08 applies, the fair market value (on the
record date for the distribution to which this Section 11.08
applies) of any Capital Stock of the Company distributed in
respect of each share of Class A Common Stock in such
Section 11.06(4) distribution.
F = the fair market value (on the record date for the
distribution to which this Section 11.08 applies) of the
assets, securities, rights, warrants or options to be
distributed in respect of each share of Class A Common Stock
in the distribution to which this Section 11.08 is being
applied (including, in the case of cash dividends or other
cash distributions giving rise to an adjustment, all such
cash distributed concurrently).
The Board of Directors shall determine fair market values for the
purposes of this Section 11.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 11.08 applies.
For purposes of this Section 11.08, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Class A Common Stock
the amount of which, together with the aggregate amount of cash dividends on the
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Class A Common Stock to be aggregated with such cash dividend in accordance with
the provisions of this paragraph, equals or exceeds the threshold percentages
set forth in item (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Class A Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Class A
Common Stock with Ex-Dividend Times occurring in the 85 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied equals or exceeds on
a per share basis 12.5% of the average of the Quoted Prices during the
period beginning on the date after the first such Ex-Dividend Time in such
period and ending on the date prior to the Ex-Dividend Time with respect to
the cash dividend to which this provision is being applied (except that if
no other cash dividend has had an Ex-Dividend Time occurring in such period,
the period for calculating the average of the Quoted Prices shall be the
period commencing 85 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being applied),
such cash dividend together with each other cash dividend with an
Ex-Dividend Time occurring in such 85 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 11.08, the value of "F" shall be equal to (w)
the aggregate amount of such cash dividend together with the amounts of the
other cash dividends with Ex-Dividend Times occurring in such period minus
(x) the aggregate amount of such other cash dividends with Ex-Dividend Times
occurring in such period for which a prior adjustment in the Conversion Rate
was previously made under this Section 11.08.
(ii) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Class A Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Class A
Common Stock with Ex-Dividend Times occurring in the 365 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied equals or exceeds on
a per share basis 25% of the average of the Quoted Prices during the period
beginning on the date after the first such Ex-Dividend Time in such period
and ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied (except that if no
other cash dividend has had an Ex-Dividend Time occurring in such period,
the period for calculating the average of the Quoted Prices shall be the
period commencing 365 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being applied),
such cash dividend together with each other cash dividend with an
Ex-Dividend Time occurring in such 365 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 11.08, the value of "F" shall be equal to (y)
the aggregate amount of such cash dividend together with the amounts of the
other cash dividends with Ex-Dividend Times occurring in such period minus
(z) the aggregate amount of such other cash dividends with Ex-Dividend Times
occurring in such period for which a prior adjustment in the Conversion Rate
was previously made under this Section 11.08.
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In making the determinations required by items (i) and (ii) above, the
amount of cash dividends paid on a per share basis and the average of the Quoted
Prices, in each case during the period specified in item (i) or (ii) above, as
applicable, shall be appropriately adjusted to reflect the occurrence during
such period of any event described in Section 11.06.
In the event that, with respect to any distribution to which this
Section 11.08 would otherwise apply, the difference ''M-F", as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the adjustment
provided by this Section 11.08 shall not be made and in lieu thereof the
provisions of Section 11.14 shall apply to such distribution.
SECTION 11.09. When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be, with one-half
of a cent and 5/10,000ths of a share being rounded upwards.
SECTION 11.10. When No Adjustment Required. No adjustment need be
made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Class A Common Stock participate in the
transaction.
No adjustment need be made for rights to purchase Class A Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for
rights to purchase Capital Stock pursuant to any future dividend or distribution
which the Company determines to be comparable in purpose and in effect to the
dividend and subsequent distribution of Rights contemplated by the Rights
Agreement.
No adjustment need be made for a change in the par value or no par
value of the Class A Common Stock.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 11.08 or 11.14, no adjustment need be made thereafter as to
the cash. Interest will not accrue on the cash.
SECTION 11.11. Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is
correct. Neither the Trustee nor any Conversion Agent shall be under any duty
or responsibility with respect to any such certificate except to exhibit the
same to any Holder desiring inspection thereof.
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SECTION 11.12. Voluntary Increase. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.
SECTION 11.13. Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.
Section 11.14. Reorganization of Company; Special Distribution. If
the Company is a party to a transaction subject to Section 5.01 or a merger or
binding share exchange which reclassifies or changes its outstanding Class A
Common Stock, the person obligated to deliver securities, cash or other assets
upon conversion of Securities shall enter into a supplemental indenture. If the
issuer of securities deliverable upon conversion of Securities is an Affiliate
of the successor Company, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
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non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Company makes a distribution to all holders of its Class A
Common Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
the last paragraph of Section 11.08, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 11.08, then, from and
after the record date for determining the holders of Class A Common Stock
entitled to receive the distribution, a Holder of a Security that converts such
Security in accordance with the provisions of this Indenture would upon such
conversion be entitled to receive, in addition to the shares of Class A Common
Stock into which the Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of Class A Common Stock entitled to
receive the distribution.
SECTION 11.15. Company Determination Final. Any determination that
the Company or the Board of Directors must make pursuant to Section 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16. Trustee's Adjustment Disclaimer. The Trustee has no
duty to determine when an adjustment under this Article 11 should be made, how
it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent shall have the same protection under this
Section 11.16 as the Trustee.
SECTION 11.17. Simultaneous Adjustments. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06(4), 11.07 or 11.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 11.06,
second, the provisions of Section 11.08 and, third, the provisions of Section
11.07.
SECTION 11.18. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19. Rights Issued in Respect of Class A Common Stock Issued
Upon Conversion. Each share of Class A Common Stock issued upon conversion of
Securities pursuant to this Article 11 shall be entitled to receive the
appropriate number of Rights, if any, and the certificates representing the
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Class A Common Stock issued upon such conversion shall bear such legends, if
any, in each case as provided by and subject to the terms of the Rights
Agreement as in effect at the time of such conversion. Notwithstanding anything
else to the contrary in this Article 11, there shall not be any adjustment to
the conversion privilege or Conversion Rate as a result of (i) the distribution
of separate certificates representing the Rights, (ii) the occurrence of certain
events entitling holders of Rights to receive, upon exercise thereof, preferred
stock of the Company or Capital Stock of another corporation or (iii) the
exercise of such Rights in accordance with the Rights Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668
Telecopier:
Telephone:
Attention: Chief Financial Officer, with a copy to Secretary
if to the Trustee:
Chemical Trust Company of California
50 California Street, 10th Floor
San Francisco, California 94111
Telecopier: 415-989-5241
Telephone: 415-954-9507
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first class mail, postage prepaid, at the
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Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
The Trustee shall transmit to Securityholders such reports concerning
the Trustee and its actions under the Indenture as may be required pursuant to
Section 313 of the Trust Indenture Act at the times and in the manner provided
pursuant thereto, if so required.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture (other than certificates
provided pursuant to Section 4.03 hereof) shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
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(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 12.06. 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 12.07. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and to the extent applicable no Original Issue Discount or
interest, if any, shall accrue for the intervening period.
SECTION 12.09. Governing Law. The laws of the State of New York and
the applicable federal laws of the United States shall govern this Indenture and
the Securities without regard to principles of conflict of laws.
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first written above.
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BERGEN BRUNSWIG CORPORATION
By:________________________
Title:
Attest:
_____________________
Title:
[SEAL] CHEMICAL TRUST COMPANY OF
CALIFORNIA
-------------------------,
as Trustee
By:________________________
Title:_____________________
Attest:
_________________________
Title: _____________________
[SEAL]
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EXHIBIT A
[FORM OF FACE OF LYON]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
PRINCIPAL AMOUNT OF THIS SECURITY IS $_____, THE ISSUE DATE IS _____________,
199___ AND THE YIELD TO MATURITY IS ___%.
BERGEN BRUNSWIG CORPORATION
Liquid Yield Option(TM) Note due _____
(Zero Coupon-Subordinated)
No.
Issue
Date: __________ 199__ Original Issue Discount: $________________
Issue Price: $_____________ (for each $1,000 Principal Amount)
(for each $1,000 Principal Amount)
Bergen Brunswig Corporation, a corporation duly organized and existing
under the laws of the State of New Jersey (hereinafter called the "Company"),
for value received, hereby promises to pay to __________________________ or
registered assigns, the Principal Amount of _________ Dollars ($_________) on
____________ __, 20__.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Indenture
referred to on the other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, Bergen Brunswig Corporation has caused this
instrument to be signed by its Chairman of the Board, or its President, or one
of its Vice Presidents, manually or by facsimile, and a facsimile of its
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(TM) Trademark of Merrill Lynch & Co., Inc.
<PAGE>
corporate seal to be imprinted hereon and attested by a manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated: BERGEN BRUNSWIG CORPORATION
By:______________________________
Title:_____________________
By:______________________________
Title:_____________________
(SEAL)
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
____________________________,
as Trustee, certifies that this is
one of the Securities referred to
in the within mentioned Indenture.
By:__________________________
Authorized Officer
Dated:________________________
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<PAGE>
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option Note(TM) due ____
(Zero Coupon-Subordinated)
1. Interest
--------
This Security shall not bear interest, except that if the Principal
hereof or any portion of such Principal is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date
set for payment of a Purchase Price pursuant to paragraph 6 hereof or upon the
Stated Maturity of this Security), then in each such case the overdue amount
shall bear interest at the rate of _____% per annum, compounded semiannually (to
the extent that the payment of such interest shall be legally enforceable),
which interest shall accrue from the date such overdue amount was due to the
date payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand. The accrual of
such interest on overdue amounts shall be in lieu of, and not in addition to,
the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security remains
outstanding, shall accrue at _____% per annum, on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security.
2. Method of Payment
-----------------
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the Securities to the persons who are registered
Holders of Securities at the close of business on the Business Day preceding the
Redemption Date or Stated Maturity, as the case may be, or at the close of
business on a Purchase Date or Conversion Date, as the case may be. Holders
must surrender Securities to a Paying Agent to collect such payments in respect
of the Securities. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may make such cash payments by check
payable in such money.
3. Paying Agent, Conversion Agent and Registrar
--------------------------------------------
Initially, Chemical Trust Company of California, as Trustee (the
"Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
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(TM) Trademark of Merrill Lynch & Co., Inc.
<PAGE>
co-registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the securities under an Indenture dated as of
________ __199__ (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended and as in effect from time to time (the "TIA"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company limited
to $___,000,000 aggregate Principal Amount (subject to Sections 2.02 and 2.07 of
the Indenture). The Indenture does not limit other Debt of the Company, secured
or unsecured, including Senior Indebtedness.
5. Redemption at the Option of the Company
---------------------------------------
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided that the
Securities are not redeemable prior to _________ ___, _____.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount on the dates shown below and at Stated Maturity, which prices
reflect accrued Original Issue Discount calculated to each such date. The
Redemption Price of a Security redeemed between such dates would include an
additional amount reflecting the additional Original Issue Discount accrued
since the next preceding date in the table to the actual Redemption Date.
<TABLE>
<CAPTION>
(1) (2) (3)
Accrued Original Redemption
LYON Issue Discount Price
Redemption Date Issue Price at % (1) + (2)
-------------------- ----------- ------------------ ------------
<S> <C> <C> <C>
$ $
At Maturity $ $1,000.00
</TABLE>
6. Purchase by the Company at the Option of the Holder
---------------------------------------------------
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
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<PAGE>
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, from the opening of business on the date that is 20 Business Days
prior to such Purchase Date until the close of business on such Purchase Date
and upon delivery of the Securities to the Paying Agent by the Holder as set
forth in the Indenture. Such Purchase Prices may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of Class A Common
Stock of the Company, or in any combination thereof.
<TABLE>
<CAPTION>
Purchase Date Purchase Price
------------- --------------
<S> <C>
.......................... $_____________
.......................... $_____________
.......................... $_____________
</TABLE>
Holders have the right to withdraw any Purchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay a Purchase Price of all Securities or portions thereof to be purchased as
of the Purchase Date is deposited with the Paying Agent on the Business Day
following the Purchase Date, Original Issue Discount ceases to accrue on such
Securities (or portions thereof) on and after such date, and the Holder thereof
shall have no other rights as such other than the right to receive the Purchase
Price upon surrender of such Security.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 15 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to or on the Redemption Date, on
and after such date Original Issue Discount ceases to accrue on such Securities
or portions thereof. Securities in denominations larger than $1,000 of
Principal Amount may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount.
8. Subordination
-------------
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
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<PAGE>
9. Conversion
----------
Subject to the next two succeeding sentences, a Holder of a Security
may convert it into Class A Common Stock of the Company at any time before the
close of business on ________, 20__. If the Security is called for redemption,
the Holder may convert it at any time before the close of business on the
Redemption Date. The number of shares of Class A Common Stock to be delivered
upon conversion of a Security into Class A Common Stock per $1,000 of Principal
Amount shall be equal to the Conversion Rate then in effect. A Security in
respect of which a Holder has delivered a Purchase Notice exercising the option
of such Holder to require the Company to purchase such Security may be converted
only if the notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is ______ shares of Class A Common Stock
per $1,000 Principal Amount, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Class A Common Stock.
To convert, a Security a Holder must (1) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture), (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Class A Common Stock except as
provided in the Indenture. On conversion of a Security, that portion of accrued
Original Issue Discount attributable to the period from the Issue Date to the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through the delivery of the Class A Common Stock (together with
any cash payment in lieu of fractional shares) in exchange for the Security
being converted pursuant to the terms hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Class A Common Stock payable in Class A Common Stock or other Capital Stock;
subdivisions, combinations or certain reclassifications of Class A Common Stock;
distributions to all holders of Class A Common Stock of certain rights to
purchase Class A Common Stock for a period of 60 days at less than the Quoted
Price at the Time of Determination; and distributions to such holders of assets
or debt securities of the Company or certain rights to purchase securities of
the Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Securityholders may participate in the transaction or
in certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
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<PAGE>
certain distributions described in the Indenture, the right to convert a
Security into Class A Common Stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another person.
10. Conversion Arrangement on Call for Redemption
---------------------------------------------
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, together with accrued interest, if any, to the Redemption
Date, by one or more investment bankers or other purchasers who may agree with
the Company to purchase such Securities from the Holders and to make payment for
such Securities to the Trustee in trust for such Holders.
11. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice has been given and not
withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
12. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
13. Unclaimed Money or Securities
-----------------------------
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
provided, however, that the Trustee or such Paying Agent, before being required
to make any such return, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or mail to
each such Holder notice that such money or securities remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed money or securities then
remaining will be returned to the Company. After return to the Company, Holders
entitled to the money or securities must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person.
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<PAGE>
14. Amendment; Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 or Section 11.14 of the Indenture, to provide for uncertificated
Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Securityholder, or to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA.
15. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default in payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price or Purchase Price (continuing for three Business Days), as the
case may be, in respect of the Securities when the same becomes due and payable;
(ii) failure by the Company to comply with other agreements in the Indenture or
the Securities, subject to notice and lapse of time; and (iii) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being declared due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) above) if it determines that withholding notice is in their interests.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may became the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
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<PAGE>
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
-------------
THE LAWS OF THE STATE OF NEW YORK AND THE APPLICABLE FEDERAL LAWS OF
THE UNITED STATES SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
--------------------
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668
Attention: Chief Financial Officer
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<PAGE>
<TABLE>
<CAPTION>
ASSIGNMENT FORM CONVERSION NOTICE
<S> <C>
To assign this Security, fill in the form below: To convert this Security into Class A
Common Stock of the Company, check the
I or we assign and transfer this Security to box:
----
_______________________________________________ | |
| |
_______________________________________________ ----
(Insert assignee's soc. To convert only part of this Security, state the
sec. or tax ID no.) Principal Amount to be converted (which must
be $1,000 or an integral multiple of $1,000):
_______________________________________________
_______________________________________________ _______________________
_______________________________________________
_______________________________________________ _______________________
(Print or type assignee's name, address and zip
code) (Insert other person's Soc. Sec. or Tax ID
No.)
and irrevocably appoint _________________
agent to transfer this Security on the books on ______________________________________________
the Company. The agent may substitute ______________________________________________
another to act for him. ______________________________________________
______________________________________________
(Print or type assignee's name, address and zip
code)
</TABLE>
______________________________________________________________________________
Date:__________________Your Signature:______________________________________*
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an eligible guarantor institution
(banks, stock brokers, savings and loan associations and credit unions with
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<PAGE>
membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17Ad-15.
- 69 -
EXHIBIT 10.1
FORM OF
BERGEN BRUNSWIG
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(AS OF MARCH 3, 1995)
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I PLAN HISTORY.................................................... 1
ARTICLE II DEFINITIONS.................................................... 2
2.1 "Accrued Benefit".............................................. 2
2.2 "Beneficiary".................................................. 4
2.3 "Bergen 401(k) Plan"........................................... 6
2.4 "Bergen Brunswig Corporation".................................. 6
2.5 "Board of Directors"........................................... 6
2.6 "Break in Service"............................................. 6
2.7 "Capital Accumulation Plan".................................... 7
2.8 "Code"......................................................... 7
2.9 "Compensation"................................................. 7
2.10 "Credited Service"............................................. 8
2.11 "Employee"..................................................... 8
2.12 "Employer"..................................................... 9
2.13 "Employment"................................................... 10
2.14 "Equivalent"................................................... 10
2.15 "ERISA"........................................................ 10
2.16 "Executive Benefits"........................................... 11
2.17 "Key Management Benefits"...................................... 11
2.18 "Normal Benefit Form".......................................... 11
2.19 "Normal Retirement Age"........................................ 12
2.20 "Optional Benefit Form"........................................ 12
2.21 "Participant".................................................. 12
2.22 "Plan"......................................................... 12
2.23 "Plan Administrator"........................................... 13
2.24 "Plan Rules"................................................... 13
2.25 "Plan Year".................................................... 13
2.26 "Service"...................................................... 13
2.27 "Spouse"....................................................... 15
2.28 "Trust"........................................................ 15
2.29 "Vested"....................................................... 15
2.30 "Vesting Service".............................................. 15
ARTICLE III PARTICIPATION................................................. 15
3.1 Requirements for Participation................................. 15
3.2 Former Participants............................................ 18
ARTICLE IV AMOUNT OF BENEFIT.............................................. 18
4.1 Determination of Benefit Amount................................ 18
ARTICLE V VESTING......................................................... 22
5.1 Vesting of Accrued Benefit..................................... 22
5.2 Forfeiture of Benefits......................................... 29
ARTICLE VI PAYMENT OF BENEFITS............................................ 30
6.1 Benefits on Termination of Employment.......................... 30
6.2 Death Benefits................................................. 30
6.3 Joint and Survivor Annuities................................... 30
6.4 Optional Benefit Forms......................................... 33
6.5 Funeral Benefit................................................ 34
6.6 Delay in Distribution.......................................... 34
6.7 No Suspension of Benefits...................................... 35
6.8 Release Required............................................... 35
i
<PAGE>
ARTICLE VII ADMINISTRATION OF THE PLAN.................................... 36
7.1 Duties of the Plan Administrator............................... 36
7.2 Delegation of Administrative Responsibility.................... 37
7.3 Compensation, Expenses and Indemnity........................... 38
7.4 Claims Procedure............................................... 40
7.5 Effect of Plan Administrator Action............................ 44
ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN........................ 46
8.1 Amendments..................................................... 46
8.2 Termination of Plan............................................ 47
ARTICLE IX FUNDING OF BENEFITS............................................ 48
9.1 Plan is Unfunded............................................... 48
9.2 Trust.......................................................... 48
9.3 Interrelationship of the Plan and the Trust.................... 48
ARTICLE X MISCELLANEOUS PROVISIONS........................................ 49
10.1 Payments....................................................... 49
10.2 Consolidation or Merger of Companies........................... 50
10.3 Adoption of Plan to Cover Other
Companies, Facilities or Groups................................ 51
10.4 Termination of Employment...................................... 51
10.5 Determination of Hours of Service.............................. 55
10.6 Alienation..................................................... 56
10.7 Division of Benefits by Domestic Relations Orders.............. 56
10.8 Legal Costs; Increased Benefit................................. 61
10.9 Duty to Provide Data........................................... 62
10.10 Limitation on Rights of Employees.............................. 63
10.11 Restrictions................................................... 64
10.12 Service of Process............................................. 65
10.13 Spouse's Interest.............................................. 65
10.14 Distribution in the Event of Taxation.......................... 65
10.15 Governing Law.................................................. 65
10.16 Plurals........................................................ 65
10.17 Titles......................................................... 66
10.18 References..................................................... 66
10.19 Entire Agreement............................................... 66
10.20 Severability................................................... 66
10.21 Withholding.................................................... 66
ii
<PAGE>
ARTICLE I
---------
PLAN HISTORY
------------
Bergen Brunswig Corporation, a New Jersey corporation (sometimes
hereinafter referred to as the "Company") adopted the Bergen Brunswig Capital
Accumulation Plan in 1980. The Capital Accumulation Plan was frozen effective
October 7, 1987. To replace the Capital Accumulation Plan, Bergen Brunswig
Corporation adopted this Supplemental Executive Retirement Plan, effective
January 1, 1991. The Supplemental Executive Retirement Plan was amended and
restated, effective July 28, 1994. The Company now desires to amend and restate
the Supplemental Executive Retirement Plan in order to provide the Participants
(as hereinafter defined) with certain additional benefits in the event of a
Change in Control (as defined below). This Amendment and Restatement of the
Supplemental Executive Retirement Plan is effective as of March 3, 1995 and
incorporates all prior amendments (as amended and restated, the "Plan").
While the Plan is not intended to qualify under the Code as a qualified
plan, the Plan is intended to be a pension benefit plan which, although subject
to ERISA, is exempt from Parts 2, 3 and 4 of Title I of ERISA because it is
(solely for purposes of ERISA) an unfunded plan that only covers a select group
<PAGE>
of management or highly compensated employees. Persons become participants as
provided herein. Benefits under the Plan become payable on account of a
Participant's retirement or death.
ARTICLE II
----------
DEFINITIONS
-----------
The following terms, when capitalized, shall have the meaning specified
below unless the context clearly indicates to the contrary.
2.1 "Accrued Benefit" of a Participant shall be the individual's
---------------
benefit under this Plan, accrued as of the time of determination. A
Participant's Accrued Benefit shall only be payable to the extent Vested.
Subject to this limitation, a Participant's Accrued Benefit shall be the amount
by which the product of the amounts described in subsections (a) and (b) exceeds
the offsets set forth in Section 4.1(a), all as calculated as of the time of
determination:
(a) the individual's benefit under Section 4.1 before application
of the offsets set forth in Section 4.1(a), and
(b) a fraction, the numerator of which is the individual's
Credited Service and the denominator of which is the greater of
2
<PAGE>
(i) the total Credited Service the individual could earn
before his or her Normal Retirement Age, or
(ii) the result determined by subtracting from fifteen the
individual's years of Service completed prior to performing any
services for the Employer in a Credited Service position.
In no event shall a Participant's fraction under this subsection exceed one.
See Section 4.1(c) for special benefit calculation rules that apply when a
Participant is demoted.
(c) For all benefit purposes, if a Participant accumulates eighty
"points" before his or her fraction in subsection (b) equals one, his or her
fraction in subsection (b) shall be raised to one. A Participant shall
accumulate 1 "point" for each year of age, 1 "point" for each year of
Employment prior to becoming employed in a position covered by this Plan and
1.5 "points" for each year of Employment subsequent to becoming employed in
a position covered by this Plan.
(d) For purposes of this Section, a person shall be considered to
have been employed in a position covered by this Plan if the position is a
3
<PAGE>
position for which he or she receives Credited Service credit.
2.2 "Beneficiary" shall mean the person designated by a Participant
-----------
to receive payments from the Plan due to the Participant's death. Beneficiary
designations and determinations shall be made in accordance with the following
rules:
(a) Each Participant shall have the right, at any time, to
designate his or her Beneficiary (both primary as well as contingent) to
receive any benefits payable under the Plan to a Beneficiary upon the death
of a Participant. The Beneficiary designated under this Plan may be the
same as or different from the Beneficiary designation under any other plan
of an Employer in which the Participant participates. A Participant shall
designate his or her Beneficiary by completing and signing a Beneficiary
Designation Form, in form and substance satisfactory to the Plan
Administrator, and returning it to the Plan Administrator for acceptance.
No designation or change in designation of a Beneficiary shall be effective
until received, accepted and acknowledged in writing by the Plan
Administrator.
(b) A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
4
<PAGE>
Beneficiary Designation Form and the Plan Rules as in effect from time to
time. Upon the acceptance by the Plan Administrator of a new Beneficiary
Designation Form, all Beneficiary designations previously filed shall be
cancelled. The Plan Administrator shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and accepted by the
Plan Administrator prior to his or her death.
(c) A Participant can designate someone other than his or her
Spouse as Beneficiary, but only with written spousal consent.
(d) If a deceased Participant has not properly designated a
Beneficiary, the Participant's Spouse shall be treated as the Beneficiary.
(e) If a deceased Participant is survived neither by a Spouse nor
a properly designated Beneficiary, the Participant's estate shall be treated
as the Beneficiary.
(f) With the Plan Administrator's consent and subject to any
conditions which the Plan Administrator may specify, the Participant may
designate more than one person to be his or her Beneficiary, provided that
5
<PAGE>
one Beneficiary is designated as the "measuring life" on which the duration
and amount of the joint and survivor annuity is to be calculated and the
portion of the survivor annuity to be paid to each Beneficiary is specified
(e.g., my mother, Jane Doe, and my invalid daughter, Janet Doe, shall share
equally in survivor benefits while they both live; any survivor benefits
payable following the death of either my mother, Jane Doe, or my invalid
daughter, Janet Doe, shall be paid to the survivor; survivor benefits are to
be determined as if only my invalid daughter, Janet Doe, were the
Beneficiary).
2.3 "Bergen 401(k) Plan" shall mean the Bergen Brunswig Corporation
------------------
Pre-Tax Investment Retirement Account Plus Employer Contributions Plan, or any
successor to that plan.
2.4 "Bergen Brunswig Corporation" shall mean Bergen Brunswig
---------------------------
Corporation, a New Jersey corporation.
2.5 "Board of Directors" shall mean the Board of Directors of Bergen
------------------
Brunswig Corporation.
2.6 "Break in Service" shall mean a period of non-Employment which
----------------
causes a former Employee to lose credits under this Plan. A former Employee
incurs one Break in Service upon the completion of each three hundred and
6
<PAGE>
sixty-five consecutive day period throughout which the individual is not an
Employee. This period shall commence on the day following the last day on which
the individual was an Employee. See Section 10.4 for special rules relating to
maternity and paternity absences.
2.7 "Capital Accumulation Plan" shall mean the Bergen Brunswig
-------------------------
Corporation Capital Accumulation Plan that was originally effective July 1,
1980, and frozen effective October 7, 1987.
2.8 "Code" shall mean the Internal Revenue Code of 1986, as amended
----
from time to time.
2.9 "Compensation" shall mean the average monthly earnings payable to
------------
a Participant for the three calendar years, whether or not consecutive, in which
the Participant received the highest Compensation during the five calendar years
immediately preceding the Participant's termination of Employment. This average
shall be computed by dividing the Participant's total "earnings" (as defined in
this Section) during the three years in question by thirty-six. A Participant's
"earnings" shall mean the base salary paid to the Participant during the
calendar year in question, including any salary waived or deferred under any
7
<PAGE>
nonqualified deferred compensation or other salary reduction arrangement, but
not including bonuses, non-cash payments or cash payments other than base
salary.
2.10 "Credited Service" shall mean the number of years of Service in
----------------
which the Participant was employed in the position he or she held at the time he
or she was designated by the Plan Administrator to be a Participant or was
covered by the Capital Accumulation Plan, or any position held thereafter,
including years before or after the adoption of either plan, but excluding any
Service while the Participant was not employed in such a position or positions.
Notwithstanding the above, should a Participant change positions, the Plan
Administrator can, in its sole discretion, determine that the new position
should not be considered a position for which such Participant shall receive any
Credited Service credit.
2.11 "Employee" shall mean an individual who renders services to the
--------
Employer as a common law employee or officer (i.e., a person whose wages from
the Employer are subject to federal income tax withholding). A person rendering
services to the Employer purportedly as an independent contractor shall not be
treated as an Employee before the Employer has acknowledged that it must
withhold federal income taxes from his or her pay. For purposes of this Plan,
an individual shall remain an "Employee" if he or she ceases to work for the
Employer for the purposes of taking an Employer-arranged job.
8
<PAGE>
2.12 "Employer" shall mean:
--------
(a) Adopting Employers. Bergen Brunswig Corporation, any related
company designated by Bergen Brunswig Corporation, any successor entity
which continues the Plan or such companies collectively; and
(b) Non-Adopting Employers. Companies that have not adopted the
Plan but are related to the adopting Employers as described in subsection
(e).
(c) All Employees of adopting and non-adopting Employers shall be
treated as employed by a single company for all Plan purposes, including
Service crediting, except that no person shall be eligible to become a
Participant or accrue Credited Service except while employed by an adopting
Employer.
(d) In contexts in which actions are required or permitted to be
taken or notice is to be given, the Employer shall mean Bergen Brunswig
Corporation.
(e) A company is a "related company" while it and the Employer
are members of a controlled group of corporations or a group of trades or
9
<PAGE>
businesses under common control (within the meaning of Code Sections 414(b)
and (c)).
2.13 "Employment" shall mean the period during which an individual is
----------
an Employee. Employment shall commence on the day the individual first performs
services for the Employer as an Employee and shall terminate on the day such
services cease.
2.14 "Equivalent" shall mean the actuarial equivalent of a given
----------
amount or benefit payable in another manner, at another time or by any other
means, determined conclusively by, or under the direction of, the Plan
Administrator in accordance with actuarial principles, methods and assumptions
which are found to be appropriate by the Plan's actuary. For purposes of this
Plan, equivalencies shall be based on the mortality assumptions included in the
indices used by Metropolitan Life Insurance Company, or such other nationally
recognized insurance company, in quoting a premium to purchase a non-qualified
individual annuity with survivor coverage as of the date of the event
necessitating the calculation (e.g. retirement, termination of Employment,
disability, etc.).
2.15 "ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
10
<PAGE>
2.16 "Executive Benefits" shall mean the benefits provided under this
------------------
Plan for officers of Bergen Brunswig Corporation who are Participants.
2.17 "Key Management Benefits" shall mean the benefits provided under
-----------------------
this Plan for officers of a subsidiary of Bergen Brunswig Corporation and
directors of a corporate department of Bergen Brunswig Corporation who are
Participants.
2.18 "Normal Benefit Form" shall mean the normal form of benefit under
-------------------
the Plan, which shall be the Equivalent of a Participant's Vested Accrued
Benefit, payable as a joint and survivor annuity based on the life expectancies
of the Participant and the measuring life Beneficiary at the time payment of the
benefit commences, consisting of monthly payments to the Participant commencing
as of the first day of the calendar month coincident with or next following the
Participant's benefit commencement date and ending with the payment for the
calendar month in which the Participant dies, with the provision that, if the
Participant dies and is survived by the Beneficiary, such Beneficiary shall
receive monthly payments of, in the case of Executive Benefits, seventy-five
percent or, in the case of Key Management Benefits, fifty percent, of the
monthly payments that were being made prior to the Participant's death,
commencing with the payment for the calendar month following the month in which
11
<PAGE>
the Participant died and ending with the payment for the calendar month in which
the Beneficiary dies.
2.19 "Normal Retirement Age" of a Participant shall mean the date on
---------------------
which the Participant attains age sixty-two.
2.20 "Optional Benefit Form" shall mean any form of benefit available
---------------------
under the Plan, other than the Normal Benefit Form.
2.21 "Participant" shall mean any person who is included in the Plan
-----------
pursuant to Article III. Any Participant who holds the title of Executive Vice
President, Senior Vice President, President, Chief Operating Officer, Chief
Executive Officer or Chairman of the Board upon the occurrence of a Change in
Control (as defined in Section 5.1(b)(ii)) shall be designated an "Executive
Participant" and shall be eligible for the acceleration of benefits set forth in
Section 5.1(b). A Participant shall cease to be a Participant at the time
determined under Section 3.1(c).
2.22 "Plan" shall mean this document. The Plan consists of two
----
components: Executive Benefits and Key Management Benefits, as more fully
described in this document.
12
<PAGE>
2.23 "Plan Administrator" shall mean Bergen Brunswig Corporation,
------------------
acting through its chief executive officer or such officer's delegate.
2.24 "Plan Rules" shall mean rules adopted by the Plan Administrator
----------
in accordance with Section 7.1(e) for the administration, interpretation or
application of the Plan.
2.25 "Plan Year" shall mean the fiscal year of the Plan, which is
---------
currently the twelve month period ending on December 31.
2.26 "Service" shall mean an Employee's period of Employment. Special
-------
rules for calculating Service are found in Section 2.10, which explains what
Service is counted for benefit accrual purposes, and Section 10.4, which deals
with maternity and paternity absences. Service shall be calculated under the
following elapsed time rules:
(a) Service shall be measured in days. Service shall commence
with the first day on which an individual performs or resumes performing
services for the Employer as an Employee (e.g., the day the individual first
performs an "hour of service" for which he or she is entitled to payment by
the Employer). Except as provided in subsection (b), an Employee's Service
13
<PAGE>
shall thereafter end on the day on which his or her Employment ends, as
determined under Section 10.4. An Employee shall be credited with one year
of Service for each three hundred and sixty-five days in his or her period
or periods of Service. (Fractional results shall be rounded up to the
nearest whole year.)
(b) No more than three hundred and sixty-five days of Service
will be credited for any continuous period during which an individual is an
Employee but performs no duties as an Employee (except as required by law
with respect to military leaves and maternity and paternity absences (see
Section 10.4)). If an individual's Employment terminates but it resumes
within three hundred and sixty-five days (i.e., before he or she incurs a
Break in Service), the period between the termination and resumption will be
included in his or her period of Service.
(c) If an individual has more than one period of Service, the
periods shall be aggregated. However, a Participant's prior period of
Service shall be ignored if thereafter the Participant completed five
consecutive Breaks in Service before he or she has earned a Vested Accrued
Benefit.
14
<PAGE>
2.27 "Spouse" shall mean the person to whom a Participant is legally
------
married at the time in question under the laws of the state in which the
Participant then resides (excluding a common-law spouse). A person shall cease
to be a Spouse when his or her marriage to the Participant is deemed dissolved
or annulled under the laws of the state in which the Participant then resides.
2.28 "Trust" shall mean the trust established pursuant to that certain
-----
Master Trust Agreement, dated as of December 27, 1994, between Bergen Brunswig
Corporation and the trustee named therein, as amended from time to time.
2.29 "Vested" shall mean non-forfeitable.
------
2.30 "Vesting Service" of an Employee shall mean his or her years of
---------------
Service calculated in accordance with Section 2.26.
ARTICLE III
-----------
PARTICIPATION
-------------
3.1 Requirements for Participation.
------------------------------
(a) Executive Benefits. A person shall become a Participant in
the Executive Benefits portion of the Plan on the date he or she becomes an
15
<PAGE>
officer of Bergen Brunswig Corporation and is selected by the Plan
Administrator to be a Participant.
(b) Key Management Benefits. A person shall become a Participant
in the Key Management Benefits portion of the Plan on the date he or she
becomes an officer of a wholly-owned subsidiary of Bergen Brunswig
Corporation or becomes a director of a corporate department of Bergen
Brunswig Corporation and is selected by the Plan Administrator to be a
Participant.
(c) Change in Status. Whenever a Participant changes positions,
the Plan Administrator shall determine, in his or her sole discretion,
whether such Participant is in a position that is covered by the Executive
Benefits portion of the Plan, a position covered by the Key Management
portion of the Plan or a position that is not covered by the Plan. Except
as provided in the next sentence, if the Plan Administrator makes no such
determination within thirty (30) days of the change in position, the
Participant shall remain in the portion of the Plan in which he or she was
covered prior to the position change. If there is no determination by the
Plan Administrator and the change in position entails becoming an officer of
Bergen Brunswig Corporation, the Participant shall become a Participant of
16
<PAGE>
the Executive Benefits portion of the Plan; if there is no determination by
the Plan Administrator and the position change entails becoming an officer
of a wholly-owned subsidiary of Bergen Brunswig Corporation or becoming a
director of a corporate department of Bergen Brunswig Corporation, the
Participant shall become a Participant of the Key Management Benefits
portion of the Plan.
(d) Termination. A Participant shall cease to be a Participant
when his or her Employment terminates (see Section 2.13), unless the
Participant becomes totally and permanently disabled while a Participant, in
which case he or she shall remain a Participant until he or she attains age
sixty-two. (A Participant shall be considered totally and permanently
disabled while the Participant is receiving long-term disability benefits
under the Bergen Brunswig Long Term Disability Plan (or would receive such
benefits if the individual were covered by that plan). A totally and
permanently disabled Participant shall continue to earn Vesting Service
during such disability. However, the individual shall not be granted
Credited Service for any period of disability. At the option of the Plan
Administrator, the Plan Administrator can terminate the Plan with respect to
the Participant and pay him or her the Equivalent of his or her Vested
Accrued Benefit in an immediate cash lump sum payment or a monthly annuity
17
<PAGE>
for a term of years to be determined by the Plan Administrator, in his or
her sole discretion, provided that such term of years shall not exceed the
life expectancy of the Participant. If the Plan Administrator exercises his
or her option, the Participant shall be deemed to be fully Vested, whether
or not he or she meets the requirements set forth in Article V.
3.2 Former Participants. A former Participant who requalifies for
-------------------
the Plan shall again become a Participant on the date he or she requalifies.
ARTICLE IV
----------
AMOUNT OF BENEFIT
-----------------
4.1 Determination of Benefit Amount. The Accrued Benefit payable to a
-------------------------------
Participant under the Plan shall be calculated as follows (but it shall only be
paid to the extent Vested under Section 5.1):
(a) Eecutive Benefits. The benefit shall be a single life
annuity (1983 Group Annuity Table) based on the Participant's life
expectancy at the Normal Retirement Age and payable monthly commencing the
month after the Participant reaches the Participant's Normal Retirement Age,
equal to eighty percent of Compensation, subject to reduction under the
18
<PAGE>
fractional accrual rule in Section 2.1 and subject to the offsets described
below. A Participant's benefit shall be subject to the following offsets
(each to be expressed as an Equivalent amount commencing at the
Participant's Normal Retirement Age in an Optional Benefit Form):
(i) the Participant's primary insurance amount payable under
the Social Security Act at his or her Social Security retirement age;
(ii) the Participant's benefit under the Capital
Accumulation Plan;
(iii) the monthly annuity the Participant could have
purchased under the Bergen 401(k) Plan, if the Participant had made
annual contributions to the Bergen 401(k) Plan of six percent of his or
her taxable compensation (but not more than the maximum contribution,
if any, allowable under Code Section 402(g)) and had received an annual
matching Employer contribution of fifty percent of that amount or, if
different, the amount determined under the table set forth below, from
later of (i) the adoption of the Bergen 401(k) Plan or (ii) the date of
the Participant's Employment through to the Normal Retirement Age. The
19
<PAGE>
sum of such hypothetical contributions for any calendar year shall not
exceed the amount then applicable under Code Section 415(c)(1)(A).
Such hypothetical contributions shall be deemed to have been made to
the Bergen 401(k) Plan on the last day of each calendar year and shall
be credited with earnings at a rate equal to the average yield of the
Bergen 401(k) Plan's guaranteed income fund, or successor fund as
determined by the Plan Administrator, as of the beginning of the plan
year of the Bergen 401(k) Plan. For calendar years commencing before
1990, the matching Employer contribution rate used shall be as follows:
<TABLE>
<CAPTION>
Employer
Matching
Calendar Contriubtion
Year Rate
-------- ------------
<S> <C>
1985 1.5%
1986 1.7%
1987 1.2%
1988 3.0%
1989 6.0%
</TABLE>
The offset required by this paragraph shall apply without regard to
whether the Participant was eligible for the Bergen 401(k) Plan or
actually made any contributions. In calculating the offset,
hypothetical contributions shall not be deemed to have been made in
calendar years prior to 1985 or in calendar years beginning before the
20
<PAGE>
Participant's fortieth birthday, whichever is later; and
(iv) any amounts owed by the Participant to the Employer
(other than amounts owed by the Participant to the Employer under
programs which expressly provide that the amount owed shall not be
subject to this offset). This offset shall be applied only after first
applying the offsets described in paragraphs (i)-(iii), and only if
payment of the benefit commences before a change in control, as defined
in Section 5.1(b)(ii).
(b) Key Management Benefits. A Participant in the Key Management
Benefits portion of the Plan shall receive the benefit described in
subsection (a), except that the monthly benefit shall be sixty-five percent
(not eighty percent) of his or her Compensation.
(c) If a Participant who is covered by the Key Management
Benefits portion of the Plan becomes covered by the Executive Benefits
portion of the Plan, the Participant's benefit shall be calculated entirely
under the Executive Benefits portion of the Plan. If a Participant who is
eligible for the Executive Benefits portion of the Plan thereafter becomes
eligible only for the Key Management Benefits portion of the Plan, his or
21
<PAGE>
her benefits under the Plan shall be the greater of (1) the benefit, if any,
he or she would have had if his or her Employment terminated when the
Participant ceased to be covered by the Executive Benefits portion of the
Plan, or (2) his or her benefit calculated under the Key Management Benefits
portion of the Plan. If a Participant who is eligible for the Executive
Benefits portion of the Plan or the Key Management Benefits portion of the
Plan ceases to be employed in a position covered by this Plan, his or her
benefits shall be determined as if his or her Employment terminated when the
Participant ceased to be employed in a position covered by this Plan.
ARTICLE V
---------
VESTING
-------
5.1 Vesting of Accrued Benefit.
--------------------------
(a) General Vesting Provisions. Payments Upon Change in Control.
Except as otherwise provided in Section 5.1(b) below, a Participant's
Accrued Benefit shall become fully Vested upon completion of five years of
Vesting Service or, if earlier, upon the later of the Participant's
attainment of age sixty-two while an Employee or his or her fifth
anniversary of becoming a Participant.
22
<PAGE>
(b) Vesting and Payment of Benefits Upon a Change in Control.
(i) Notwithstanding any other provisions of the Plan, upon
the occurrence of a Change in Control (as defined below), each
Participant's Accrued Benefit shall deemed to be fully Vested under the
Plan and each Executive Participant shall be entitled to benefits under
the Plan in accordance with the following: (A) As of the date of the
Change in Control, such Executive Participant shall be deemed to have
attained the Normal Retirement Age; (B) with respect to each year
between such Executive Participant's actual age as of the date of the
Change in Control (if less than the Normal Retirement Age) and the
Normal Retirement Age (the "Interim Period"), such Executive
Participant shall be deemed to have been continuously employed by the
Company in, and to have continuously performed (without any Breaks in
Service) the duties of, the position with the Company that such
Executive Participant held as of the date of the Change in Control; (C)
such Executive Participant shall be deemed to be entitled to Credited
Service for all times during the Interim Period; (D) such Executive
Participant's base salary as of the date of the Change in Control shall
be deemed to have increased at a rate of 4.0% per year each year during
23
<PAGE>
the Interim Period, resulting in a corresponding increase in the
Executive Participant's Compensation for purposes of the Plan; (E) such
Executive Participant's Accrued Benefit under the Plan shall be
calculated in accordance with the assumptions set forth in the
preceding clauses (A) - (D), but without deduction of the offset
described in Section 4.1.(a)(iv) of the Plan; and (F) prior to or upon
the consummation of the transactions giving rise to the Change in
Control, the Company shall pay to such Executive Participant, by
certified or bank cashier's check, a cash lump sum payment that is the
Equivalent of such Executive Participant's Vested Accrued Benefit
determined in accordance with this Section 5.1.(b).
(ii) A "Change in Control" shall be deemed to occur 90 days
prior to the occurrence of any of the following events:
(w) any "person" (as defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), shall become the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Bergen Brunswig Corporation representing 50% or more
24
<PAGE>
of the combined voting power of Bergen Brunswig Corporation's then
outstanding securities, provided, however, that for purposes of
this calculation, purchases by employee benefit plans of Bergen
Brunswig Corporation and purchases by Bergen Brunswig Corporation
itself shall be disregarded; or
(x) there shall be consummated: (A) any consolidation,
merger or transaction in the nature of a Section 351 transaction
under the Internal Revenue Code of 1986, as amended from time to
time (the "Code") (whether or not it meets the requirements for
nonrecognition of gain under Section 351 of the Code) of Bergen
Brunswig Corporation in which either Bergen Brunswig Corporation
is not the continuing or surviving corporation, the majority of
the common stock of Bergen Brunswig Corporation is no longer held
by holders of Bergen Brunswig Corporation common stock immediately
prior to the transaction or pursuant to which shares of Bergen
Brunswig Corporation's common stock would be converted into cash,
securities or other property; provided, however, that a
consolidation, merger or transaction in the nature of a Section
25
<PAGE>
351 transaction under the Code in which the holders of Bergen
Brunswig Corporation's common stock immediately prior to the
merger own, on a proportionate basis, at least 80% of the common
stock of the surviving corporation immediately after the
transaction shall not be considered a Change in Control; or (B)
any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all, or substantially all, of
the operating assets of Bergen Brunswig Corporation; or
(y) the stockholders of Bergen Brunswig Corporation
approve a plan or proposal for the liquidation or dissolution of
Bergen Brunswig Corporation; or
(z) during any rolling period of two consecutive years
ending on any date after the date hereof, individuals who at the
beginning of such period constituted the Board of Directors and
any new director whose election or nomination for election was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the beginning of
26
<PAGE>
the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof; provided, however, that no director shall be
considered to have been so approved if such individual initially
assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under
the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a "person" (as defined in
Sections 13(d) and 14(d) of the Exchange Act) other than the Board
of Directors (a "Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest.
(iii) In the event of a Change in Control, upon payment to
each Executive Participant of the cash lump sum payment referred to in
clause (F) of subsection 5.1(b)(i) above, the Company shall also pay to
such Executive Participant, by certified or bank cashier's check, a
cash lump sum payment equal to (x) the amount of excise tax for which
such Executive Participant is or may become liable under Internal
27
<PAGE>
Revenue Code Section 4999 (or any successor provision) with respect to
the payments under this Section 5.1(b), taking into account all
compensation includable in the computation under Internal Revenue Code
Section 280G (or any successor provision), including, without
limitation, payments under this subsection (iii) plus (b) the amount of
such Executive Participant's income tax liability arising from the
Company's payment of the excise tax liability referred to in the
preceding clause (a), such that the payments under clauses (a) and (b)
taken together shall provide such Participant with sufficient
after-income tax dollars to pay such Participant's liability for
Internal Revenue Code Section 4999 excise taxes. The maximum combined
marginal federal and applicable state(s) income tax rate in effect for
the year in which the payments under this subsection (iii) are to be
made shall be used in computing the amount of such payments. In the
event that the Company and the Executive Participant are unable to
agree upon the amount of the payment required under this subsection
(iii), such amount shall be determined by Tax Counsel (as defined
below). The decision of such Tax Counsel shall be final and binding
upon both the Company and the Executive Participant. All fees and
expenses of such Tax Counsel shall be paid by the Company. As used in
this subsection (iii), the term "Tax Counsel" shall mean an attorney at
28
<PAGE>
law or certified public accountant who is a partner at a law firm of at
least 25 attorneys or a partner at a "Big 6" accounting firm,
respectively, provided that such firm has not provided services to the
Company or the respective Executive Participant or any affiliate of the
Company or such Executive Participant within the last year.
(iv) Upon the occurrence of a Change in Control, (x) this
subsection 5.1(b) shall become irrevocable, and (y) Sections 6.8,
7.4(h), 7.4(i), 7.5 and 10.11 hereof shall cease to apply, none of such
sections shall ever thereafter be reinstated, and no similar provisions
shall ever be adopted hereunder.
5.2 Forfeiture of Benefits. The unvested portion of an Executive
----------------------
Participant's Accrued Benefit shall be forfeited on the date the Executive
Participant completes five consecutive Breaks in Service.
29
<PAGE>
ARTICLE VI
----------
PAYMENT OF BENEFITS
-------------------
6.1 Benefits on Termination of Employment. A Participant who
-------------------------------------
terminates Employment on or after attaining Normal Retirement Age shall receive
his or her Vested Accrued Benefit commencing immediately and payable in
accordance with this Article. If the Participant terminates Employment before
his or her Normal Retirement Age, the Participant shall receive the Equivalent
of his or her Vested Accrued Benefit commencing immediately upon termination of
Employment and payable in accordance with this Article.
6.2 Death Benefits. Subject to Section 10.7, if a Participant with a
--------------
Vested Accrued Benefit dies, at the option of the Plan Administrator, the
Participant's Beneficiary shall be paid the lump sum Equivalent of the remaining
balance of the Participant's Vested Accrued Benefit.
6.3 Joint and Survivor Annuities.
----------------------------
(a) Subject to Section 6.4, a Participant's Vested Accrued
Benefit shall be paid in the Normal Benefit Form. Distribution shall also
be made in the form of a joint and survivor annuity if a former Spouse is
30
<PAGE>
entitled to survivor annuity benefits under a qualified domestic relations
order, as provided in Section 10.7. More than one Spouse may be entitled to
joint and survivor annuity benefits. For example, two former Spouses may
have been awarded survivor benefits and there may also be a current Spouse.
In such cases, this Section shall be applied by dividing the Participant's
Vested Accrued Benefit in proportion to the spousal entitlements and then
applying this Section to each portion as if each portion were a separate
Vested Accrued Benefit belonging to the Participant and the Spouse or former
Spouse in question.
(b) After a Participant has received the explanation required by
subsection (c), the Participant and his or her Spouse, if any, if such
Spouse is a Beneficiary (or former Spouse if such Spouse has the power to do
so under a qualified domestic relations order), may elect, with the consent
of the Plan Administrator and in the manner prescribed by it, not to receive
a joint and survivor annuity, in which case the Participant shall receive
his or her Vested Accrued Benefit in an Optional Benefit Form. This
election may be made at any time but must be made no later than one year
preceding the time benefit payments would otherwise commence under Section
6.1. This election shall become irrevocable one year preceding the time
benefit payments would otherwise commence under Section 6.1. Spousal
31
<PAGE>
consents to elections waiving joint and survivor annuity benefits that are
required must be given in writing witnessed by a representative of the Plan
Administrator or a notary public. A spousal consent will only be valid if
it also consents to both the alternative form of payment chosen and the
Beneficiary, if any, thereunder and only if the form of payment and the
Beneficiary cannot be changed without future spousal consent (unless the
written spousal consent expressly permits such changes to be made and the
Spouse acknowledges that he or she understands that he or she does not have
to grant this permission). A Spouse's written consent must acknowledge the
effect of the payment and the Beneficiary election to which he or she is
consenting. The Plan Administrator in its discretion may refuse to
recognize a spousal consent if it believes for any reason that the consent
is invalid. Spousal consent shall be waived by the Plan Administrator if a
Participant has no Spouse and may be waived if the Spouse cannot be located
or for such other reasons authorized in applicable Treasury Regulations.
Revocations of previous elections to waive the joint and survivor annuity
may be made at any time and any number of times within the election period
and new waiver elections may thereafter be made. Revocations of elections
to waive the joint and survivor annuity may be made without spousal consent.
A spousal consent given by one Spouse shall be invalid as to any former or
32
<PAGE>
subsequent Spouse (but no benefit shall be payable under this Section to a
person who becomes the Participant's Spouse after the Participant's benefit
payments under the Plan have commenced).
(c) Assuming sufficient notice of termination of Employment has
been provided to the Plan Administrator, no less than thirty nor more than
ninety days before termination of Employment, the Plan Administrator shall
furnish each Participant with a written explanation of the terms and
conditions of the Normal Benefit Form, the Participant's right to make an
election to waive the Normal Benefit Form or to revoke a previous election
and the effect of such election or revocation, the rights of the
Participant's Spouse in connection with an election by the Participant, and
the relative values of the Optional Benefit Forms then available under the
Plan.
6.4 Optional Benefit Forms. Instead of receiving a benefit in the
----------------------
Normal Benefit Form, a Participant may elect to receive payments in an Optional
Benefit Form. This election must be made in writing in accordance with the
requirements of the Plan Administrator and must be delivered to the Plan
Administrator prior to the Participant's termination of Employment. A married
Participant may be required to obtain his or her Spouse's consent to this
election pursuant to the rules set forth in Section 6.3(b). If an Optional
33
<PAGE>
Benefit Form provides benefits to a Beneficiary, election of the Optional
Benefit Form shall not be effective unless the Beneficiary is alive on the date
of the Participant's Retirement. The Optional Benefit Forms available to a
Participant are as follows:
(a) A cash lump sum which is the Equivalent of the Participant's
Vested Accrued Benefit.
6.5 Funeral Benefit. In addition to any other benefit payable under
---------------
the Plan, the estate of a Participant who dies before termination of Employment
shall be paid a cash lump sum in the amount of $5,000 to cover funeral expenses
of the Participant. This additional benefit shall be paid only if the estate
gives written notice of the Participant's death to the Plan Administrator and
only if the Participant had a Vested Accrued Benefit, without regard to whether
any or all of the Vested Accrued Benefit will be paid. This benefit shall be
reduced by the funeral benefit, if any, which became payable with respect to the
Participant under section 6.3 of the Capital Accumulation Plan.
6.6 Delay in Distribution.
---------------------
(a) If the amount payable under this Article cannot be
ascertained or the person to whom it is payable has not been determined or
located and reasonable efforts to do so have been made, then distributions
34
<PAGE>
under this Article shall commence, retroactive to the date they would
normally have commenced, within a reasonable time after such amount is
ascertained or such person is determined or located.
(b) Distribution of benefits to a Participant shall not be
triggered by the transfer of the Participant to any other job (whether or
not with the Employer or an affiliate) if the transfer is arranged by the
Employer. The Participant's benefit will commence when the Participant
ceases to be employed by the Employer or by any other company for which the
Participant worked in an Employer-arranged job.
6.7 No Suspension of Benefits. Benefits which are in pay status shall
-------------------------
not be suspended if a Participant subsequently performs services for the
Employer in any capacity.
6.8 Release Required. No benefits shall be payable to a Participant
----------------
unless the Participant executes a general release waiving any and all claims the
Participant may have against the Employer and related parties. The release
shall be made on the form prescribed by the Employer and cannot be given any
earlier than one month before benefit payments are expected to commence. A
release shall not be required with respect to benefits that become payable under
35
<PAGE>
the Plan because of termination of Employment due to death.
ARTICLE VII
-----------
ADMINISTRATION OF THE PLAN
--------------------------
7.1 Duties of the Plan Administrator. The Plan Administrator shall be
--------------------------------
responsible for the general administration and management of the Plan. The Plan
Administrator shall have all powers and duties and the discretion necessary to
fulfill its responsibilities, including, but not limited to, the following
powers and duties:
(a) To determine all questions relating to the eligibility of
persons to participate;
(b) To determine the amount and kind of benefits payable to
Participants;
(c) To maintain all records necessary for the administration of
the Plan;
(d) To provide for disclosure of all information and filing or
provision of all reports and statements to Participants, Spouses,
Beneficiaries or governmental bodies as shall be required by ERISA or any
36
<PAGE>
other federal law;
(e) To adopt or modify Plan Rules for the regulation or
application of the Plan; such Rules may establish administrative procedures
or requirements which modify the terms of this Plan but Plan Rules shall not
substantially alter significant requirements or provisions of the Plan;
(f) To administer the claims procedure set forth in Section 7.4;
(g) To delegate any power or duty to any firm or person in
accordance with Section 7.2; and
(h) To exercise all other powers or duties granted to the Plan
Administrator by other provisions of the Plan.
7.2 Delegation of Administrative Responsibility.
-------------------------------------------
(a) The Plan Administrator may delegate all or any portion of its
administrative responsibilities with respect to the Plan to any other person
pursuant to this Section.
37
<PAGE>
(b) A delegation under this Section shall be accomplished by a
written instrument executed by the Plan Administrator specifying
responsibilities delegated and the fiduciary responsibilities allocated to
such delegate. The delegation of such responsibilities shall be effective
upon the date specified in the delegation, subject to written acceptance by
the delegate. Any delegation of responsibilities shall provide for reports,
no less often than annually, by such delegate to the Plan Administrator of
such information necessary to fully inform the Plan Administrator of the
status and operation of the Plan and of the delegate's discharge of
responsibilities delegated.
7.3 Compensation, Expenses and Indemnity.
------------------------------------
(a) The Plan Administrator and any delegate under Section 7.2 who
is an Employee shall serve without compensation for services to the Plan.
The Employer shall furnish the Plan Administrator or any such delegate with
all clerical or other assistance necessary in the performance of his or her
duties. The Plan Administrator is authorized to employ such legal counsel
and advisors as it may deem advisable to assist in the performance of its
duties hereunder.
38
<PAGE>
(b) All costs of administering the Plan (including the cost of
legal services described in subsection (a)) shall be paid by the Employer.
Except as the Plan Administrator otherwise directs, any expenses incurred in
resolving disputes among different claimants as to their entitlement to a
benefit shall be charged against the benefit, which shall be reduced
accordingly.
(c) To the extent permitted by applicable law, the Employer shall
indemnify and save harmless the Board of Directors, the Plan Administrator
and any delegate appointed pursuant to Section 7.2 who is an Employee
against any and all expenses, liabilities and claims (including legal fees
incurred to defend against such liabilities and claims) arising out of their
discharge in good faith of responsibilities under or incident to the Plan.
Expenses and liabilities arising out of willful misconduct shall not be
covered under this indemnity. This indemnity shall not preclude such
further indemnities as may be available under insurance purchased by the
Employer or provided by the Employer under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, as such indemnities
are permitted under applicable law. Payments with respect to any indemnity
and payment of expenses or fees shall be made only from assets of the
Employer.
39
<PAGE>
7.4 Claims Procedure.
----------------
(a) Normally, a Participant, Beneficiary Contingent Annuitant or
Spouse need not present a formal claim in order to qualify for rights or
benefits under this Plan. However, if any such person (a "claimant") does
not believe he or she will receive the benefits to which the person is
entitled or believes that the Plan is not being operated properly, the
claimant must file a formal claim under the procedures set forth in this
Section. A formal claim must be filed within six months of the date upon
which the claimant (or his or her predecessor in interest) first knew (or
should have known) of the facts upon which the claim is based.
(b) A claim by any person shall be presented to the Plan
Administrator in writing. A claims official appointed by the Plan
Administrator shall, within ninety days of receiving the claim, consider the
claim and issue his or her determination thereon in writing. The claims
official may extend the determination period for up to an additional ninety
days by giving the claimant written notice. If the claim is granted, the
benefits or relief the claimant seeks will be provided.
40
<PAGE>
(c) If the claim is wholly or partially denied, the claims
official shall, within ninety days (or such longer period as described
above), provide the claimant with written notice of the denial, setting
forth, in a manner calculated to be understood by the claimant,
(i) the specific reason or reasons for the denial,
(ii) specific references to pertinent Plan provisions on
which the denial is based,
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of
why the material or information is necessary, and
(iv) an explanation of the Plan's claim review procedure.
If the claims official fails to respond to the claim in a timely
manner, the claimant may treat the claim as having been denied by the claims
official.
(d) Each claimant shall have the opportunity to appeal in writing
the claims official's denial of a claim to a review official (which may be a
41
<PAGE>
person or a committee) designated by the Plan Administrator for a full and
fair review. A claimant must request review of a denied claim within sixty
days after receipt by the claimant of written notice of denial of his or her
claim or within sixty days after such written notice was due, if the written
notice was not sent. In connection with the review proceeding, the claimant
or his or her duly authorized representative may review pertinent documents
and may submit issues and comments in writing. The claimant may only
present evidence and theories during the review which the claimant presented
during the claims procedure, except for information which the claims
official requested the claimant to provide to perfect the claim (see
subsection (b)(iii)). Any claims which the claimant does not in good faith
pursue through the review stage of the procedure shall be treated as having
been irrevocably waived.
(e) The Plan Administrator shall adopt procedures pursuant to
which claims shall be reviewed and may, in its discretion, adopt different
procedures for different claims without being bound by past actions. Any
procedures adopted, however, shall be designed to afford a claimant a full
and fair review of his or her claim.
42
<PAGE>
(f) The decision by the review official upon review of a claim
shall be made not later than sixty days after the written request for review
is received by the Plan Administrator, unless special circumstances require
an extension of time for processing, in which case a decision shall be
rendered as soon as possible, but not later than one hundred twenty days
after receipt of the request for review.
(g) The decision on review shall be in writing and shall include
specific reasons for the decision written in a manner calculated to be
understood by the claimant, with specific references to the pertinent Plan
provisions on which the decision is based.
(h) If a claimant pursued his or her claim through the review
stage of the claims procedure and the claim was denied (or the review
official failed to decide the claim on a timely basis, in which case it
shall be deemed denied), the claimant will be permitted to appeal the denial
by arbitration pursuant to Section 7.5 of the Plan. In no event shall any
claim to which this procedure applies be subject to resolution by any means
(such as in a court of law) other than by this claim procedure or
arbitration under Section 7.5
43
<PAGE>
(i) This Section shall apply to a claim notwithstanding any
failure by the Plan Administrator or its delegates to follow the procedures
in this Section with respect to the claim. However, an arbitrator reviewing
such a claim may permit a claimant to present additional evidence or
theories if the arbitrator determines that the claimant was precluded from
presenting them during the claim and review procedures due to procedural
errors of the Plan Administrator or its delegates.
7.5 Effect of Plan Administrator Action. The Plan shall be
-----------------------------------
interpreted by the Plan Administrator and all Plan fiduciaries in accordance
with the terms of the Plan and their intended meanings. However, the Plan
Administrator and all Plan fiduciaries shall have the discretion to make any
findings of fact needed in the administration of the Plan, and shall have the
discretion to interpret or construe ambiguous, unclear or implied (but omitted)
terms in any fashion they deem to be appropriate in their sole judgment. The
validity of any such finding of fact, interpretation, construction or decision
shall not be given de novo review if challenged in court, by arbitration or in
any other forum, and shall be upheld unless clearly arbitrary or capricious. To
the extent the Plan Administrator or any Plan fiduciary has been granted
discretionary authority under the Plan, the Plan Administrator's or Plan
fiduciary's prior exercise of such authority shall not obligate it to exercise
its authority in a like fashion thereafter. If, due to errors in drafting, any
44
<PAGE>
Plan provision does not accurately reflect its intended meaning, as demonstrated
by consistent interpretations or other evidence of intent, or as determined by
the Plan Administrator in its sole and exclusive judgment, the provision shall
be considered ambiguous and shall be interpreted by the Plan Administrator and
all Plan fiduciaries in a fashion consistent with its intent, as determined by
the Plan Administrator in its sole discretion. The Plan Administrator, without
the need for Board of Directors' approval, shall amend the Plan retroactively to
cure any such ambiguity. This Section may not be invoked by any person to
require the Plan to be interpreted in a manner which is inconsistent with its
interpretation by the Plan Administrator or by any Plan fiduciaries. All
actions taken and all determinations made in good faith by the Plan
Administrator or by Plan fiduciaries shall be final and binding upon all persons
claiming any interest in or under the Plan. This Section shall cease to apply
upon the occurrence or a change in control (see Section 5.1(b)(ii)) and it shall
thereafter never be reinstated in any way.
45
<PAGE>
ARTICLE VIII
------------
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
8.1 Amendments.
----------
(a) Bergen Brunswig Corporation, through its Board of Directors,
reserves the right at any time to amend the Plan or to merge, consolidate,
divide or otherwise restructure the Plan prospectively or retroactively, in
accordance with this Article VIII, subject to the restrictions set forth in
Sections 4.1(a)(iv), 5.1(b) and 7.5, which take effect upon the occurrence
of a change in control (as defined in Section 5.1(b)(ii)).
(b) All amendments or other changes shall be adopted in writing
by resolution of the Board of Directors or, in the case of an amendment that
does not substantially alter the nature or expense of the Plan, by the Plan
Administrator without Board approval.
(c) Any material modification of the Plan by amendment or
termination shall be communicated to all interested parties in the time and
manner required by law.
46
<PAGE>
(d) No Plan amendment shall be applied retroactively to decrease
the Vested percentage or Vested Accrued Benefit of a Participant or former
Participant whose Employment terminated before the date the amendment became
effective.
(e) No Plan amendment shall be applied retroactively to decrease
the amount of Service credited to any person for Employment before the date
the amendment became effective.
(f) Except as provided in subsections (d) and (e), all rights
under the Plan shall be determined under the terms of the Plan as in effect
at the time the determination is made.
8.2 Termination of Plan. The Plan is intended to be a permanent
-------------------
program, but any Employer, through its Board of Directors, shall have the right
at any time to declare the Plan terminated completely as to it or as to any of
the Employer's divisions, facilities, operational units or job classifications.
If the Plan is terminated, all unvested benefits shall be forfeited but all
Vested benefits shall remain payable. The Employer may accelerate the payment
of such benefits, however, and pay the person entitled to the benefit the
equivalent of the remaining payments due.
47
<PAGE>
ARTICLE IX
----------
FUNDING OF BENEFITS
-------------------
9.1 Plan is Unfunded. This Plan is, for purposes of ERISA and the
----------------
Code, an unfunded deferred compensation plan for a select group of management
and highly compensated employees. Participants and their Beneficiaries,
successors and assigns shall have no legal or equitable rights, interests or
claims in any property or assets of an Employer. Any and all of an Employer's
assets shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future.
9.2 Trust. Bergen Brunswig Corporation shall establish the Trust, and
-----
the Adopting Employers shall at least annually transfer over to the Trust such
assets as the Adopting Employers determine, in good faith, are necessary to
provide for each Employer's future liabilities created under this Plan. Whether
or not an Employer funds the Trust, it shall at all times remain liable to carry
out its obligations under the Plan.
9.3 Interrelationship of the Plan and the Trust. The provisions of
-------------------------------------------
the Plan shall govern the rights of a Participant to receive distributions
48
<PAGE>
pursuant to the Plan. The provisions of the Trust shall govern the rights of
the Employers, Participants and the creditors of the Employers to the assets
transferred to the Trust. Each Employer shall at all times remain liable to
carry out its obligations under the Plan. Each Employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the terms of the
Trust, and any such distribution shall reduce the Employer's obligations under
this Plan.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
10.1 Payments.
--------
(a) In the event any amount becomes payable under the Plan to a
minor or a person who, in the sole judgment of the Plan Administrator, is
considered to be unable to give a valid receipt for the payment by reason of
physical or mental condition, the Plan Administrator may direct that payment
be made to any person found by the Plan Administrator, in its sole judgment,
to have assumed the care of the person in question. Any payment made
pursuant to such a finding shall constitute payment by the Plan and result
in a full release and discharge of the Plan Administrator, the Employer and
their officers, directors, employees, agents and representatives.
49
<PAGE>
(b) Payment of benefits to the person entitled thereto may be
made by a check sent first class mail, address correction requested, to the
last known address on file with the Plan Administrator. If within six
months from the date of issuance of the check the payment letter cannot be
delivered to the person entitled thereto or the check has not been
negotiated, all benefits under the Plan may be forfeited at the discretion
of the Plan Administrator.
(c) If the Plan Administrator retains at the Plan's expense a
private investigator or other person or service to assist in locating a
missing person, all costs incurred for such services shall be charged to the
benefit to which the missing person was entitled (which shall be reduced by
the amount of the costs incurred), except as the Plan Administrator may
otherwise direct.
10.2 Consolidation or Merger of Companies. In the event of the
------------------------------------
consolidation or merger of the Employer with or into any other business entity,
or the sale by the Employer of all of its assets, the successor may continue the
Plan by adopting the same by resolution of its board of directors or agreement
of its partners or proprietor. This Plan shall not be construed as preventing
the Employer from selling, transferring or otherwise disposing of all or any
part of the business or assets of the Employer, and the purchaser of all or any
50
<PAGE>
part of the Employer shall not be obligated to continue this Plan. If, within
ninety days from the effective date of a consolidation, merger or sale of
assets, the new corporation, partnership or proprietorship does not adopt the
Plan, the Plan shall be terminated in accordance with Section 8.2.
10.3 Adoption of Plan to Cover Other Companies, Facilities or Groups.
---------------------------------------------------------------
Any company, with the approval of the Plan Administrator, may adopt the Plan (as
a whole company or as to any one or more divisions or facilities or other
employment classifications) effective as of the date it specifies. Adoption
shall be accomplished either by action of the adopting company (without board
approval) or by resolution of the adopting company's own board of directors or
agreement of its partners. The same procedure shall be followed when an
Employer that has adopted the Plan wishes to change the positions or facilities
covered by this Plan.
10.4 Termination of Employment.
-------------------------
(a) A person's Employment shall terminate upon the first to occur
of his or her resignation from or discharge by the Employer, or his or her
death or retirement. A person's Employment shall not terminate on account
of an authorized leave of absence, sick leave or vacation, or on account of
51
<PAGE>
a military leave described in subsection (b), a direct transfer between
Employers or a temporary layoff for lack of work. However,
(i) continuation upon a temporary layoff for lack of work
for a period in excess of the number of months allowable under
applicable personnel policies of the Employer shall be considered a
discharge effective as of the end of the last day of such period,
(ii) failure to return to work upon expiration of any leave
of absence, sick leave or vacation or within the time period allowed
under applicable personnel policies of the Employer after recall from a
temporary layoff for lack of work shall be considered a resignation
effective as of the expiration of such leave of absence, sick leave,
vacation or layoff, and
(iii) solely for purposes of this Plan, Employment shall not
terminate until the expiration of all severance benefits payable by the
Employer.
(b) Any Employee who leaves the Employer directly to perform
service in the Armed Forces of the United States or in the United States
52
<PAGE>
Public Health Service under conditions entitling the Employee to
reemployment rights, as provided in the laws of the United States, shall be
on military leave. An Employee's military leave shall expire if such
Employee voluntarily resigns from the Employer during the leave or if he or
she fails to make application for reemployment within the period specified
by such laws for the preservation of reemployment rights. In such event,
the individual's Employment shall be deemed to terminate by resignation on
the date the military leave expired.
(c) If a Participant ceases to be employed by the Employer
and all related companies, as determined under Section 2.12(e), because of
the disposition by the Employer or a related company of its interest in a
subsidiary (within the meaning of Code Section 409(d)(3)) or substantially
all of the assets (within the meaning of Code Section 409(d)(2)) used by the
Employer or a related company in a trade or business, the Participant's
Employment shall be considered terminated for all Plan purposes. This
subsection shall not apply to the extent it is overridden by any contrary or
inconsistent provision in applicable sales documents or any related
documents, whether adopted before or after the sale and any such contrary or
53
<PAGE>
inconsistent provision shall instead apply and is hereby incorporated in the
Plan by this reference.
(d) If an Employee is absent from work because of such
individual's pregnancy, the birth of a child, placement of an adopted child,
or caring for an adopted or natural child following birth or placement,
determinations of whether the Employee has incurred a Break in Service
because of the absence shall be made in accordance with the following
special rules:
(i) If the maternity/paternity absence is an
Employer-approved leave of absence, it shall be treated as any other
approved leave of absence (i.e., a Break in Service will not occur
until the individual's Employment terminates because he or she quits or
is discharged or he or she is considered terminated pursuant to Section
10.4(a)).
(ii) If the maternity/paternity absence is not an
Employer-approved leave of absence the individual's Employment will be
deemed terminated as of the date determined under applicable personnel
policies of the Employer but the individual shall not incur a Break in
Service until the end of the second three hundred and sixty-five
consecutive day period of his or her absence from Employment. If the
54
<PAGE>
individual returns to Employment during the first three hundred and
sixty-five consecutive days of absence, the period of absence shall be
treated as Service. If the individual returns to Employment during the
second three hundred and sixty-five consecutive day period of absence,
the portion of that second period which precedes the individual's
return to Employment will not be a Break in Service but will not count
as Service.
(e) No credit shall be given under subsection (d) unless the
Employee files a written request which establishes valid reasons for the
absence, as determined by the Plan Administrator.
(f) Except to the extent that a maternity or paternity absence
constitutes an authorized leave of absence from the Employer under
applicable personnel policies, an Employee who is absent from work for
reasons of maternity or paternity shall be deemed to have terminated
Employment for all purposes of this Plan other than the special rules in
subsection (d).
10.5 Determination of Hours of Service. This Plan uses the elapsed
---------------------------------
time system for crediting Service. Therefore, a Participant's hours of Service
55
<PAGE>
need not be measured or defined by this Plan.
10.6 Alienation. Except as otherwise provided in this Plan, the
----------
rights of a Participant, Spouse or Beneficiary under the Plan shall not be
subject to any claim of any creditor nor to attachment or garnishment or other
legal process by any creditor. A Participant, Spouse or Beneficiary shall not
have the right to alienate, anticipate, commute, pledge, encumber or assign any
of the benefits or payments or proceeds which the individual may expect to
receive, contingently or otherwise, under the Plan. The provisions of this
Section shall not preclude any assignment or alienation expressly required under
applicable pension law or other provisions of the Plan.
10.7 Division of Benefits by Domestic Relations Orders.
-------------------------------------------------
(a) This Plan will follow the terms of any qualified domestic
relations order issued with respect to a Participant. However, except as
provided in subsection (e), the Plan will only follow orders which meet all
of the requirements of subsection (b) or subsection (c). Subsection (c)
establishes an optional standardized procedure.
56
<PAGE>
(b) A "qualified domestic relations order" is any judgment,
decree or order, including the approval of a property settlement agreement,
issued by a court of competent jurisdiction, provided that
(i) the order relates to the provision of child support,
alimony or marital property rights and is made pursuant to state
domestic relations or community property laws;
(ii) the order creates or recognizes the existence of an
alternate payee's right to receive all or a portion of a Participant's
Accrued Benefit;
(iii) the order specifies the name and last known mailing
address of the Participant and each alternate payee covered by the
order;
(iv) the order precisely specifies the amount or percentage
of the Participant's Accrued Benefit to be paid to each alternate payee
or the manner in which the amount or percentage is to be determined;
(v) the order specifies the number of payments or the period
to which the order applies;
57
<PAGE>
(vi) the order specifically names this Plan as the plan to
which the order applies;
(vii) the order does not require this Plan to provide any type
of benefits or form of benefits not otherwise provided under this Plan;
(viii) the order does not require the payment of benefits to an
alternate payee which are required to be paid to another alternate
payee under another order previously determined by the Plan
Administrator to be a qualified domestic relations order; and
(ix) (if the order requires that payments to the alternate
payee commence before they commence with respect to the Participant)
the order (1) specifies that payments will not commence before the
earlier of (a) the date on which the Participant attains age fifty or
the first date on which the Participant could begin receiving benefits
under the Plan if the Participant's Employment terminated, whichever is
later, or (b) the date benefits first become payable to the Participant
58
<PAGE>
and (2) does not permit the alternate payee to elect a joint and
survivor annuity covering the alternate payee and a spouse (other than
the Participant).
A qualified domestic relations order may provide that a former Spouse
of the Participant is to be treated as a surviving Spouse for purposes of
the pre-retirement or post-retirement joint and survivor annuity provisions
of this Plan. Subsection (d) sets forth the procedures under which the Plan
Administrator shall determine whether a domestic relations order properly
qualifies.
(c) The Plan Administrator at its discretion may furnish on
request a standard form of qualified domestic relations order to a
Participant or any other person. This order may provide for an immediate
lump sum payment of the Equivalent of the amount to which the Plan
Administrator shall treat it as a qualified domestic relations order and
shall pay benefits to the alternate payee in accordance with its terms. If
this procedure is not followed, the alternate payee (1) must wait until the
time described in subsection (b)(ix) before benefits which are not in pay
status can become payable to the alternate payee and (2) cannot use any
special forms of benefit payment authorized in the standard form of order.
Any special benefit form provisions in standard domestic relations orders
adopted by the Plan Administrator shall be authorized as benefit options
59
<PAGE>
under this Plan, but only as Plan Administrator shall treat it as a
qualified domestic relations order and shall pay benefits to the alternate
payee in accordance with its terms. If this procedure is not followed, the
alternate payee (1) must wait until the time described in subsection (b)(ix)
before benefits which are not in pay status can become payable to the
alternate payee and (2) cannot use any special forms of benefit payment
authorized in the standard form of order. Any special benefit form
provisions in standard domestic relations orders adopted by the Plan
Administrator shall be authorized as benefit options under this Plan, but
only as to alternate payees for whom the standard order has been used.
(d) The Plan Administrator need not treat any judgment, decree or
order as a qualified domestic relations order unless it meets all of the
requirements set forth in subsection (b) or (c) and is sufficiently precise
and unambiguous so as to preclude any interpretative disputes. If the
order meets these requirements, the Plan Administrator shall follow the
terms of the order whether or not this Plan has been joined as a party to
the litigation out of which the order arises. Upon receipt of a domestic
relations order, the Plan Administrator shall notify the Participant and
each alternate payee of (1) its receipt of the order and (2) its need to
60
<PAGE>
determine the qualified status of the order in accordance with subsection
(b) or (c). An alternate payee may designate a representative to receive
copies of future notices with respect to the qualified status of the order.
To the extent an order calls for benefits to be paid to an alternate payee
before the qualified nature of the order is determined, a separate account
shall be established to hold the benefit payments affected by the order.
This account shall be administered in accordance with the rules set forth
in Section 206(d)(3)(H) of ERISA.
(e) The Plan Administrator in its discretion may treat a property
settlement agreement or stipulation which is not contained in a judgment,
decree or order as a qualified domestic relations order if it meets all of
the other requirements of this Section.
10.8 Legal Costs; Increased Benefit.
------------------------------
(a) The Employer shall pay to a Participant all reasonable
attorneys' fees and necessary costs and disbursements incurred by or on
behalf of such Participant in connection with or as a result of a dispute
under this Agreement, whether or not the Participant ultimately prevails.
Attorneys' fees shall be paid by the Employer within 30 days of presentment
61
<PAGE>
by the Participant to the Employer of an invoice received by the Participant
from the Participant's attorneys. Any late payments under this Section
shall bear interest at a rate of twenty percent (20%) per month.
(b) If the Employer disputes any position taken by a Participant under
this Agreement and the Participant prevails, the Participant's benefit under
this Plan shall be doubled and the increased amount shall become immediately
due and payable to the Participant.
10.9 Duty to Provide Data.
--------------------
(a) Every person with an interest in the Plan or claiming
benefits under the Plan shall furnish the Plan Administrator on a timely and
accurate basis with such documents, evidence or information as it considers
necessary or desirable for the purpose of administering the Plan. The Plan
Administrator may postpone payment of benefits until such information and
such documents have been furnished.
(b) Once every twelve months every person claiming a benefit
under this Plan shall file a signed, written notice to the Plan
Administrator of his or her post office address and each change of post
office address. Any communication, statement or notice addressed to such a
62
<PAGE>
person at his or her latest post office address as filed with the Plan
Administrator will, on deposit in the United States mail with postage
prepaid, be as binding upon such person for all purposes of the Plan as if
it had been received, whether actually received or not. If a person fails
to give notice of his or her correct address, the Plan Administrator, the
Employer and Plan fiduciaries shall not be obliged to search for, or to
ascertain, his or her whereabouts.
10.10 Limitation on Rights of Employees. Except as otherwise required
---------------------------------
by law or in other written agreements between the Employer and Participant,
nothing contained in the Plan shall give any Participant the right to be
retained in the service of the Employer or to interfere with or restrict the
right of the Employer, which is hereby expressly reserved, to discharge or
retire any Participant at any time, with or without cause. Except as otherwise
required by law or in other written agreements between the Employer and
Participant, inclusion under the Plan will not give any Participant any right or
claim to any benefit hereunder except to the extent such right has specifically
become fixed under the terms of the Plan. If any dispute arises under the Plan
between a Participant and the Employer or any of its subsidiaries, such
subsidiary or any other Participant shall not be necessary parties to the
63
<PAGE>
dispute and need not be named in any litigation. Except as otherwise provided
herein, benefits under this Plan shall not be accelerated merely because there
is a change in ownership of the Employer. This Plan shall not obligate the
Employer to maintain a minimum net worth in order to insure payment of benefits.
The doctrine of substantial performance shall have no application to Employees
or Participants. Each condition and provision, including numerical items, has
been carefully considered and constitutes the minimum limit on performance which
will give rise to the applicable right.
10.11 Restrictions. A Participant shall not at any time, either
------------
directly or indirectly, accept employment with, render service, assistance or
advice to, or allow his or her name to be used by any competitor of the Employer
unless approved by the Executive Committee of the Board of Directors.
Determination by the Executive Committee of the Board of Directors that the
Participant has engaged in any such activity shall be binding and conclusive on
all parties, and in addition to all other rights and remedies which the Employer
shall have, the Participant shall not be entitled to any payments hereunder.
This provision shall cease to apply upon a change in control, as defined in
Section 5.1(b)(ii).
64
<PAGE>
10.12 Service of Process. The Secretary of Bergen Brunswig Corporation
------------------
is hereby designated as agent for the service of legal process on the Plan.
10.13 Spouse's Interest. The interest in the benefits hereunder of a
-----------------
Spouse of a Participant who has predeceased the Participant shall automatically
pass to the Participant and shall not be transferable by such Spouse in any
manner, including but not limited to such Spouse's will, nor shall such interest
pass under the laws of intestate succession.
10.14 Distribution in the Event of Taxation. If, for any reason, all
-------------------------------------
or any portion of a Participant's benefit under this Plan becomes taxable to the
Participant prior to receipt, a Participant's Employer shall distribute to the
Participant immediately available funds in an amount equal to the taxable
portion of his or her benefit.
10.15 Governing Law. Subject to ERISA, the Plan shall be interpreted,
-------------
administered and enforced in accordance with the internal laws of the State of
California without regard to its conflicts of laws principles.
10.16 Plurals. Where the context so indicates, the singular shall
-------
include the plural and vice versa.
65
<PAGE>
10.17 Titles. Titles are provided herein for convenience only and are
------
not to serve as a basis for interpretation or construction of the Plan.
10.18 References. Unless the context clearly indicates to the
----------
contrary, a reference to a Plan provision, statute, regulation or document shall
be construed as referring to any subsequently enacted, adopted or executed
counterpart.
10.19 Entire Agreement. This Plan contains the full and complete
----------------
understanding of the parties with respect to the subject matter hereof and
supersedes all prior representations and understandings, whether oral or
written.
10.20 Severability. In the event that any provision hereof or any
------------
obligation or grant of rights herein is found invalid or unenforceable pursuant
to judicial decree or decision, any such provision, obligation or grant of
rights shall be deemed and construed to extend only to the maximum extent
permitted by law, and the remainder of this Plan shall remain valid and
enforceable according to its terms.
10.21 Withholding. Anything in this Plan to the contrary
-----------
notwithstanding, all payments required to be made hereunder to a Participant or
Beneficiaries shall be subject to the withholding of such amounts relating to
66
<PAGE>
taxes as the Plan Administrator may reasonably determine should be withheld
pursuant to any applicable law or regulation.
IN WITNESS WHEREOF, the Company has caused this Amendment and
Restatement to be executed by its duly authorized officer as of the ________ day
of ____________, 1996.
By Order of the Board of Directors of
BERGEN BRUNSWIG CORPORATION, a New
Jersey corporation
By:________________________________
Executive Vice President,
Chief Legal Officer and Secretary
67
FORM OF
AMENDED AND RESTATED
BERGEN BRUNSWIG
CAPITAL ACCUMULATION PLAN
<PAGE>
TABLE OF CONTENTS
----------------- Page
----
ARTICLE I PLAN HISTORY................................................... 1
ARTICLE II DEFINITIONS................................................... 2
2.1 "Beneficiary"................................................... 2
2.2 "Benefit"....................................................... 2
2.3 "Benefit Bank".................................................. 2
2.4 "Board of Directors"............................................ 2
2.5 "Change in Control"............................................. 2
2.6 "Code".......................................................... 3
2.7 "Compensation".................................................. 3
2.8 "Election Period"............................................... 3
2.9 "Employee"...................................................... 4
2.10 "Employer"...................................................... 4
2.11 "Employment".................................................... 5
2.12 "ERISA"......................................................... 5
2.13 "Executive Plan"................................................ 5
2.14 "Key Management Plan"........................................... 5
2.15 "Lump Sum Election"............................................. 6
2.16 "Lump Sum Payment".............................................. 6
2.17 "Master Trust Agreement"........................................ 6
2.18 "Outside Director Plan"......................................... 6
2.19 "Participant"................................................... 6
2.20 "Plan".......................................................... 7
i
<PAGE>
2.21 "Plan Administrator"............................................ 7
2.22 "Plan Rules".................................................... 7
2.23 "Plan Year"..................................................... 7
2.24 "Retirement".................................................... 7
2.25 "Spouse"........................................................ 8
2.26 "Vested"........................................................ 8
ARTICLE III PARTICIPATION................................................ 9
3.1 Requirements for Participation.................................. 9
3.2 Former Participants............................................. 10
3.3 Future Participants............................................. 10
ARTICLE IV AMOUNT OF BENEFIT............................................. 11
4.1 Determination of Benefit Amount................................. 11
4.2 Benefit Bank.................................................... 12
4.3 Loans to Participants in the Executive Plan..................... 14
ARTICLE V BENEFIT ACCRUAL AND VESTING.................................... 16
5.1 Amount of Benefit Payable....................................... 16
5.2 Accrual of Benefits............................................. 16
5.3 Vesting of Accrued Benefit...................................... 18
5.4 Acceleration of Benefits Upon Change in Control................. 20
5.5 Forfeiture of Benefits.......................................... 23
ARTICLE VI PAYMENT OF BENEFITS........................................... 23
6.1 Distribution on Retirement or Termination of Employment......... 23
6.2 Distribution on Death........................................... 25
6.3 Funeral Benefit................................................. 28
6.4 Delay in Distribution........................................... 28
ii
<PAGE>
6.5 Suspension of Benefits.......................................... 29
6.6 Lump-Sum Election............................................... 29
ARTICLE VII ADMINISTRATION OF THE PLAN................................... 31
7.1 Duties of the Plan Administrator................................ 31
7.2 Delegation of Administrative Responsibility..................... 32
7.3 Compensation, Expenses and Indemnity............................ 33
7.4 Claims Procedure................................................ 34
7.5 Effect of Plan Administrator Action............................. 37
ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN....................... 38
8.1 Amendments...................................................... 38
8.2 Termination of Plan............................................. 39
ARTICLE IX MISCELLANEOUS PROVISIONS...................................... 40
9.1 Payments........................................................ 40
9.2 Consolidation or Merger of Companies............................ 41
9.3 Alienation...................................................... 42
9.4 Division of Benefits by Domestic Relations
Orders.......................................................... 43
9.5 Duty to Provide Data............................................ 47
9.6 Limitation on Rights of Employees............................... 48
9.7 Restrictions.................................................... 49
9.8 Service of Process.............................................. 49
9.9 Governing Law................................................... 49
9.10 Plurals......................................................... 50
9.11 Titles.......................................................... 50
9.12 References...................................................... 50
EXHIBIT A PLAN RULES..................................................... 51
iii
<PAGE>
iv
<PAGE>
AMENDED AND RESTATED
BERGEN BRUNSWIG
CAPITAL ACCUMULATION PLAN
ARTICLE I
---------
PLAN HISTORY
------------
Bergen Brunswig Corporation adopted the Bergen Brunswig Capital
Accumulation Plan in 1980. This document restates the Plan, effective July 1,
1980, and incorporates Amendment No. 1 and Amendment No. 2.
The Plan is a non-qualified deferred compensation plan. Benefits under
the Plan are unfunded and unsecured. Persons become participants upon meeting
the Plan's eligibility requirements. Benefits under the Plan are distributed on
account of a Participant's retirement or death. Loans are available to certain
participants.
The Plan is not intended to qualify under the Internal Revenue Code.
However, the Plan is a pension benefit plan subject to the Employee Retirement
Income Security Act of 1974 ("ERISA").
- 1 -
<PAGE>
ARTICLE II
----------
DEFINITIONS
-----------
The following terms, when capitalized, shall have the meaning specified
below unless the context clearly indicates to the contrary.
2.1 "Beneficiary" shall mean a person or entity entitled under
-----------
Article VI to receive a Participant's Benefit on his or her death.
2.2 "Benefit" shall mean a lump sum or annual amount payable from the
-------
Plan to a Participant or his or her Beneficiary, as more fully described in
Articles IV, V and VI.
2.3 "Benefit Bank" shall mean the amount available to a Participant
------------
to be applied to purchase Benefits or loans hereunder. The Employer pays the
entire cost of the Plan.
2.4 "Board of Directors" shall mean the Board of Directors of Bergen
------------------
Brunswig Corporation. For purposes of this Plan, outside directors are
considered "Employees."
2.5 "Change in Control" shall have the same definition as contained
-----------------
in Section 1.5(c) of the Master Trust Agreement and be fully incorporated
herein.
- 2 -
<PAGE>
2.6 "Code" shall mean the Internal Revenue Code of 1954, as amended
----
from time to time.
2.7 "Compensation" shall mean the annual cash salary payable to a
------------
Participant as of the latest of (1) July 1, 1980 (July 1, 1983 in the case of
the Key Management Plan), (2) the date the individual first becomes a
Participant, or (3) the effective date of a periodic adjustment to the
Participant's Compensation by the Plan Administrator. Compensation shall
include the earnings waived by the Participant pursuant to a salary reduction
arrangement under any cash or deferred or cafeteria plan which is maintained by
the Employer and which is intended to qualify under Code Section 401(k) or 125,
or pursuant to a salary reduction arrangement which is not part of such a plan.
In no event shall a Participant's Compensation include bonuses or cash payments
other than salary. By written notice to a Participant, the Plan Administrator
may periodically adjust the Participant's Compensation to reflect his or her
current salary.
2.8 "Election Period" shall mean the period beginning one hundred
---------------
eighty (180) days prior to the date on which a Participant attains his or her
applicable Retirement age (see Section 2.19) and ending thirty (30) days prior
to the date on which a Participant attains his or her applicable Retirement age
- 3 -
<PAGE>
(see Section 2.19), during which a Participant may make a Lump Sum Election, as
more fully detailed in Article VI.
2.9 "Employee" shall mean an individual who renders services to the
--------
Employer as a common law employee or officer (i.e., a person whose wages from
the Employer are subject to federal income tax withholding). A member of the
Board of Directors who is not otherwise an Employee shall be considered an
Employee solely for purposes of this Plan. Except for directors, a person
rendering services to the Employer purportedly as an independent contractor
shall not be treated as an Employee before the Employer has acknowledged that it
must withhold federal income taxes from his or her pay. For purposes of this
Plan, an individual shall remain an "Employee" if he or she ceases to work for
the Employer for the purposes of taking an Employer-arranged job (see Section
6.4(b)).
2.10 "Employer" shall mean Bergen Brunswig Corporation and any related
--------
company designated by Bergen Brunswig Corporation. In contexts in which actions
are required or permitted to be taken or notice is to be given, the Employer
shall mean Bergen Brunswig Corporation.
- 4 -
<PAGE>
2.11 "Employment" shall mean the period during which an individual is
----------
an Employee. Employment shall commence on the day the individual first performs
services for the Employer as an Employee and shall terminate on the day such
services cease.
2.12 "ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974.
2.13 "Executive Plan" shall mean the portion of this Plan which covers
--------------
eligible officers of the Employer. The Executive Plan provides monthly
retirement benefits of one hundred percent of Compensation beginning at age
sixty-two and continuing until age eighty, or, alternatively, a lump sum
payment, and also permits loans before retirement.
2.14 "Key Management Plan" shall mean the portion of this Plan which
-------------------
covers eligible officers of a subsidiary of the Employer and eligible directors
of a corporate department of the Employer. The Key Management Plan provides
monthly retirement benefits of fifty percent of Compensation beginning at age
sixty-two and continuing until age seventy-seven, or, alternatively, a lump sum
payment, but does not provide for loans.
- 5 -
<PAGE>
2.15 "Lump Sum Election" shall mean the election by a Participant to
-----------------
receive a lump sum payment of his Vested Accrued Benefit instead of a series of
monthly payments, as more fully described in Article VI.
2.16 "Lump Sum Payment" shall mean the single lump sum payment made to
----------------
a Participant having in effect a valid Lump Sum Election. The Lump Sum Payment
equals the present value of the stream of monthly payments to which a
Participant would be entitled but for his or her Lump Sum Election, as more
fully described in Article VI.
2.17 "Master Trust Agreement" shall mean the Master Trust Agreement
----------------------
dated December 27, 1994 between Employer and Wachovia Bank of North Carolina,
N.A., as Trustee.
2.18 "Outside Director Plan" shall mean the portion of this Plan which
---------------------
covers eligible members of the Board of Directors who are not common law
employees of the Employer. The Outside Director Plan provides annual retirement
benefits of $15,000 beginning at age seventy and continuing until age eighty,
or, alternatively, a lump sum payment.
2.19 "Participant" shall mean any person who is included in the Plan
-----------
pursuant to Article III. A Participant shall cease to be a Participant at the
- 6 -
<PAGE>
time determined under Section 3.1(d).
2.20 "Plan" shall mean this document. The Plan consists of three
----
components: the Executive Plan, the Key Management Plan and the Outside Director
Plan, as more fully described in this document.
2.21 "Plan Administrator" shall mean Bergen Brunswig Corporation,
------------------
acting through its chief executive officer or such officer's delegate. The Plan
Administrator is the Plan's "named fiduciary" within the meaning of Section
402(a)(2) of ERISA.
2.22 "Plan Rules" shall mean rules adopted by the Plan Administrator
----------
in accordance with Section 7.1(e) for the administration, interpretation or
application of the Plan. See Exhibit A for more details on Plan Rules.
2.23 "Plan Year" shall mean the fiscal year of the Plan, which is
---------
presently the twelve month period ending on June 30.
2.24 "Retirement" shall mean a Participant's termination of Employment
----------
or disability retirement (to the extent permitted by the next sentence) on or
after the date he or she attains age sixty-two (age seventy, in the case of a
- 7 -
<PAGE>
Participant in the Outside Director Plan). A Participant who becomes totally
and permanently disabled (as determined by the Plan Administrator) while a
Participant and prior to attainment of his or her applicable Retirement age
(sixty-two or seventy) and remains disabled shall take Retirement on the date
the Participant attains his or her Retirement age (or such earlier date as the
Plan Administrator may determine in its discretion if a delay in Retirement
would result in financial hardship to the Participant).
2.25 "Spouse" shall mean the person to whom a Participant is legally
------
married at the time in question under the laws of the state in which the
Participant then resides (excluding a common-law spouse). A person shall cease
to be a Spouse when his or her marriage to the Participant is deemed dissolved
or annulled under the laws of the state in which the Participant then resides.
2.26 "Vested" shall mean non-forfeitable. would be entitled but for
------
his or her Lump Sum Election, as more fully described in Article VI.
- 8 -
<PAGE>
ARTICLE III
-----------
PARTICIPATION
-------------
3.1 Requirements for Participation
------------------------------
(a) Executive Plan: A person shall become a Participant in the
Executive Plan on the later of (1) the date he or she becomes an officer of
Bergen Brunswig Corporation or (2) the date he or she is notified by the Plan
Administrator in writing that he or she has become a Participant.
(b) Key Management Plan: A person shall become a Participant in
the Key Management Plan on the later of (1) the date he or she is an officer of
a wholly-owned subsidiary of Bergen Brunswig Corporation or a director of a
corporate department of Bergen Brunswig Corporation and has been an Employee for
at least one full year or (2) the date he or she is notified by the Plan
Administrator in writing that he or she has become a Participant.
(c) Outside Director Plan: A person shall become a Participant
in the Outside Director Plan on the earlier of (1) the date he or she has been
an outside member of the Board of Directors for at least three consecutive years
or (2) the date he or she is notified by the Plan Administrator in writing that
he or she has become a Participant.
(d) A Participant shall cease to be a Participant when his or
her Employment terminates (see Section 2.9), unless the Participant becomes
- 9 -
<PAGE>
totally and permanently disabled while a Participant, in which case he or she
shall remain a Participant until his or her Retirement (as more fully provided
in Section 2.19).
3.2 Former Participants
-------------------
A former Participant who requalifies for the Plan shall again
become a Participant as permitted by the Plan Administrator. A former
Participant's prior service with the Employer shall be taken into account for
purposes of this Plan only to the extent specified by the Plan Administrator.
3.3 Future Participants
-------------------
Effective October 7, 1987, the Plan, including each of its
component plans, is hereby frozen to new participants. Hence, on and after that
date, no one shall become a member of the Plan, or, if already a member of one
of its component plans, become a member of any of its other component plans.
- 10 -
<PAGE>
ARTICLE IV
----------
AMOUNT OF BENEFIT
-----------------
4.1 Determination of Benefit Amount
--------------------------------
Subject to accrual and vesting (see Article V), the Benefit
payable to a Participant under the Plan shall be calculated as follows:
(a) Executive Plan: For a Participant in the Executive Plan, the
Benefit shall be the Benefit which can be "purchased" under Section 4.2 with his
or her Benefit Bank, up to a maximum Benefit of one hundred percent of his or
her Compensation. Loans are also available under this Plan (see Section 4.3).
(b) Key Management Plan: A Participant in the Key Management
Plan shall receive the same Benefit as an Executive Plan Participant, except
that the maximum Benefit shall be fifty percent (not one hundred percent) of his
or her Compensation. Loans are not available under this Plan.
(c) Outside Director Plan: The Benefit of a Participant in the
Outside Director Plan shall be $15,000. Loans are not available under this
Plan.
(d) If a Participant is transferred from the Key Management Plan
to the Executive Plan, the Participant's Benefit shall be calculated under the
Executive Plan based on his or her Compensation as of the date of transfer,
- 11 -
<PAGE>
which shall replace any Benefit earned under the Key Management Plan.
4.2 Benefit Bank
------------
(a) Each Participant in the Executive Plan and the Key
Management Plan shall have a Benefit Bank, which shall be credited with the
amount determined under the applicable schedule below:
<TABLE>
<CAPTION>
EXECUTIVE PLAN BENEFIT BANK
---------------------------
Years of Continuous Employment
Since Most Recent Date of Hire Benefit Bank Credit
- ------------------------------ -------------------
<S> <C>
4 or less 12.50% of Compensation
5 through 9 18.75% of Compensation
10 or more 25.00% of Compensation
</TABLE>
<TABLE>
<CAPTION>
KEY MANAGEMENT PLAN BENEFIT BANK
--------------------------------
Years of Continuous Employment
Since Most Recent Date of Hire Benefit Bank Credit
- ------------------------------ -------------------
<S> <C>
4 or less 9.375% of Compensation
5 through 9 14.0625% of Compensation
10 or more 18.75% of Compensation
If a Participant becomes totally and permanently disabled while an Employee and
prior to Retirement, the period of disability shall count as continuous
employment.
(b) A Participant's Benefit Bank shall be charged for the cost
of his or her Benefit and, under the Executive Plan, for the cost of loans made
- 12 -
<PAGE>
to the Participant. The "cost" of a Benefit shall be fifty-four percent
(thirty-four percent prior to June 21, 1986) of the annual premium for life
insurance based on life insurance industry standards for a person of the
Participant's age and sex for the purpose of providing the Benefit (such cost to
be determined by the Plan Administrator). (This life insurance is an asset of
the Employer and does not "fund" Benefits within the meaning of Section 83 (or
any successor provision) of the Code.) If the "cost" of the Benefit (combined
with the amount charged for all loans to the Participant under the Executive
Plan) exceeds the Participant's Benefit Bank, the Benefit (and/or the amount
available for a loan under the Executive Plan) shall be reduced to the extent
necessary to eliminate the excess. The Participant must take, but need not
pass, a life insurance physical examination in order to qualify for a Benefit.
The Benefit Bank of a Participant in the Executive Plan who borrows money
pursuant to the Plan shall be reduced by an amount equal to ten percent of the
amounts loaned to the Participant. This reduction may, at the discretion of the
Plan Administrator, be cancelled when all or part of the loan is repaid. The
amount of the reduction to be cancelled, if any, shall be equal to ten percent
of the loan amount repaid.
(c) Once the cost of a Benefit or a loan has been charged to a
Participant's Benefit Bank, the amount of the Benefit or the loan for which the
charge was made shall not be reduced because of a subsequent reduction in the
- 13 -
<PAGE>
Participant's Compensation or Benefit Bank or because of a subsequent increase
in the "cost" of Benefits or loans. However, such changes shall be taken into
account in determining the maximum amount of additional Benefits or loans
available to the Participant.
4.3 Loans to Participants in the Executive Plan
-------------------------------------------
(a) At the request of a Participant in the Executive Plan, the
Employer shall loan money from its general assets to the Participant, in
accordance with the rules and limits of subsection (b).
(b) A Participant who wishes to borrow money pursuant to this
Section shall file a written loan application with the Plan Administrator. No
loan shall be granted unless all of the following requirements are met:
(i) The loan shall not exceed one hundred twenty-five percent of
the Participant's Compensation. In addition, no loan shall be made to the
extent that it cannot be "funded" from the Participant's Benefit Bank (the
amount charged to the Benefit Bank shall be ten percent of the principal
amount loaned). In applying these loan limits, all loans to the Participant
under this Plan (whether or not repaid) shall be aggregated with any
proposed loan.
- 14 -
<PAGE>
(ii) The loan shall normally be interest free, but interest at
the rate of ten percent per annum may be charged at the discretion of the
Plan Administrator.
(iii) The loan shall be adequately secured by real or personal
property of the Participant equivalent in value to one hundred twenty-five
percent of the loan.
(iv) Except as otherwise authorized by the Plan Administrator,
principal on a loan must be repaid upon demand, but not later than the
Participant's Retirement.
(v) The loan shall be documented by such notes, evidences of
indebtedness and other instruments executed by the Participant which the
Plan Administrator in its discretion requires.
- 15 -
<PAGE>
ARTICLE V
---------
BENEFIT ACCRUAL AND VESTING
---------------------------
5.1 Amount of Benefit Payable
--------------------------
The amount of a Participant's Benefit is determined under Article
IV. The portion of the Benefit which is actually payable is determined by first
applying the accrual schedule in Section 5.2 to the Benefit determined under
Article IV and then applying the vesting schedule in Section 5.3 to the
resulting amount.
5.2 Accrual of Benefits
-------------------
(a) Executive Plan and Key Management Plan: The portion of a
Participant's Benefit under the Executive Plan or the Key Management Plan which
has accrued (the "Accrued Benefit") shall be determined under the following
table at the same time that vesting is determined under Section 5.3(a):
</TABLE>
<TABLE>
<CAPTION>
Percentage of
Years of Service Benefit Accrued
----------------- ---------------
<S> <C>
1 but less than 5 50%
5 but less than 10 75%
10 or more 100%
</TABLE>
(b) Outside Director Plan: The portion of a Participant's
Benefit under the Outside Director Plan which has accrued (the "Accrued
Benefit") shall be determined under the following table at the same time that
- 16 -
<PAGE>
vesting is determined under Section 5.3(a):
<TABLE>
<CAPTION>
Percentage of
Years of Service Benefit Accrued
---------------- ---------------
<S> <C>
2 or less 0%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 or more 100%
</TABLE>
(c) The term "years of service" under the Executive and Key
Management Plans shall mean the full number of years during a Participant's most
recent period of Employment with Bergen Brunswig Corporation, its subsidiaries
and companies acquired by Bergen Brunswig Corporation, and for the Outside
Director Plan shall mean the full number of years while a Participant is a
member of the Board of Directors (including, in either case, any time during the
relevant period while the Participant was totally and permanently disabled,
within the meaning of Section 2.19, if the disability commenced while the person
was a Participant and prior to the earlier of his or her Retirement or
termination of Employment). Prior periods of Employment shall also be taken
- 17 -
<PAGE>
into account to the extent specified by the Plan Administrator. In the event of
a Participant's death prior to the earlier of his or her Retirement or
termination of Employment, years of service shall be calculated as if the
Participant had survived to his or her applicable Retirement age (see Section
2.19).
5.3 Vesting of Accrued Benefit
--------------------------
(a) A Participant's Accrued Benefit under the Plan is not Vested
until the earliest of the Participant's Retirement, death, or termination of
Employment (provided such termination is on good terms, as determined in the
sole discretion of the Plan Administrator, and the Participant signs a general
release in a form which approximates the form attached hereto as Exhibit B),
except as otherwise provided in Section 5.4 hereof. At that time, the Accrued
Benefit (as determined under Section 5.2) shall vest in whole or in part in
accordance with this Section and the Vested portion of the Accrued Benefit shall
be paid in accordance with Article VI.
(b) The Accrued Benefit of a Participant who takes Retirement or
dies while an Employee shall become one hundred percent Vested. The Accrued
Benefit of a Participant whose Employment terminates prior to his or her
Retirement or death shall be vested as determined under the following table:
- 18 -
<PAGE>
<TABLE>
<CAPTION>
Years in a Qualified Vested Percentage
Job Category of Accrued Benefit
-------------------- ------------------
<S> <C>
2 or less 0%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 or more 100%
</TABLE>
(c) The term "years in a qualified job category" shall mean the
full number of years during a Participant's most recent period of Employment
(including any time during that period while the Participant was totally and
permanently disabled, within the meaning of Section 2.19, if the disability
commenced while the person was a Participant and prior to the earlier of his or
her Retirement or termination of Employment) and while the Participant held the
position of "Director of the Board" for purposes of the Outside Director Plan,
or "Corporate Officer" of the Employer for purposes of the Executive Plan, or
"Director" of a corporate department of the Employer or "Officer" of a
wholly-owned subsidiary of the Employer for purposes of the Key Management Plan.
A Participant who transfers directly from a position covered by the Plan to a
position with the Employer which is not covered by the Plan shall continue to
- 19 -
<PAGE>
earn years in a qualified job category until the earliest of his or her
termination of Employment, death or Retirement. Prior periods of Employment
shall also be taken into account to the extent specified by the Plan
Administrator, but employment with a company before it was acquired by the
Employer shall not count. A Participant who delays Retirement beyond his or her
applicable Retirement age (see Section 2.19) with the written approval of the
Plan Administrator shall have his or her years in a qualified job category while
Retirement is delayed taken into account under this Section for vesting
purposes.
5.4 Acceleration of Benefits Upon Change in Control.
-----------------------------------------------
(a) Notwithstanding any other provisions of this Plan, upon a
Change in Control, each Participant shall be entitled to benefits under the Plan
in accordance with the following: (A) As of the date of the Change in Control,
such Participant shall be deemed to have attained (if he has not already done
so) the age of sixty-two; (B) with respect to each year between such
Participant's actual age as of the date of the Change in Control (if less than
the age of sixty-two) and the age of sixty-two (the "Interim Period"), such
Participant shall be deemed to have been continuously employed by the Company
in, and to have continuously performed the duties of, the position with the
- 20 -
<PAGE>
Company that such Participant held as of the date of the Change in Control; (C)
such Participant shall be deemed to be entitled to full service credit for all
times during the Interim Period; (D) such Participant's annual cash salary as of
the date of the Change in Control shall be deemed to have increased at a rate of
4.0% per year each year during the Interim Period, resulting in a corresponding
increase in Participant's Compensation for purposes of the Plan; (E) such
Participant's Benefit under the Plan shall be calculated in accordance with the
assumptions set forth in the preceding clauses (A) - (D); (F) such Participant's
Benefit shall be deemed to be fully Accrued and fully Vested as of the date of
the Change in Control; and (G) prior to or upon the consummation of the
transactions giving rise to the Change in Control, the Company shall pay to such
Participant, by certified or bank cashier's check, a Lump Sum Payment calculated
in accordance with this Section 5.4(a) and Section 6.6(d) hereof as if such
Participant had made a valid Lump Sum Election.
(b) In the event of a Change in Control, upon payment to each
Participant of the Lump Sum Payment referred to in clause (G) of Section 5.4(a)
above, the Company shall also pay to such Participant, by certified or bank
cashier's check, a cash lump sum payment equal to (x) the amount of excise tax
for which such Participant is or may become liable under Internal Revenue Code
Section 4999 (or any successor provision) with respect to the payments under
- 21 -
<PAGE>
this Section 5.4, taking into account all compensation includable in the
computation under Internal Revenue Code Section 280G (or any successor
provision), including, without limitation, payments under this Section 5.4(b),
plus (y) the amount of such Participant's income tax liability arising from the
Company's payment of the excise tax liability referred to in the preceding
clause (x), such that the payments under clauses (x) and (y) taken together
shall provide such Participant with sufficient after-income tax dollars to pay
such Participant's liability for Internal Revenue Code Section 4999 excise
taxes. The maximum combined marginal federal and applicable state(s) income tax
rate in effect for the year in which the payments under this Section 5.4(b) are
to be made shall be used in computing the amount of such payments. In the event
that the Company and the Participant are unable to agree upon the amount of the
payment required under this Section 5.4(b), such amount shall be determined by
Tax Counsel (as defined below). The decision of such Tax Counsel shall be final
and binding upon both the Company and the Participant. All fees and expenses of
such Tax Counsel shall be paid by the Company. As used in this Section 5.4(b),
the term "Tax Counsel" shall mean an attorney at law or certified public
accountant who is a partner at a law firm of at least 25 attorneys or a partner
- 22 -
<PAGE>
at a "Big 6" accounting firm, respectively, provided that such firm has not
provided services to the Company or the respective Participant or any affiliate
of the Company or such Participant within the last year.
(c) Upon the occurrence of a Change in Control, (x) this
subsection 5.4 shall become irrevocable, and (y) Sections 5.3(a), 7.4(g), 7.5(b)
and 9.7 hereof shall cease to apply, none of such sections shall ever thereafter
be reinstated, and no similar provisions shall ever be adopted hereunder.
5.5 Forfeiture of Benefits
----------------------
The unvested portion of the Accrued Benefit of a Participant
whose Employment terminates prior to his or her Retirement or death shall be
forfeited on the date Employment terminates. If the person again becomes a
Participant, forfeited Benefits shall only be restored to the extent specified
by the Plan Administrator.
ARTICLE VI
----------
PAYMENT OF BENEFITS
-------------------
6.1 Distribution on Retirement or Termination of Employment
-------------------------------------------------------
(a) In General: A Participant's Vested Accrued Benefit shall be
distributed to him or her in the event of his or her Retirement. Unless a
Participant has in effect a valid Lump Sum Election under Section 6.6, the
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<PAGE>
distribution of a Participant's Vested Accrued Benefit shall be made in monthly
installments equal to one-twelfth of the Participant's annual Vested Accrued
Benefit, commencing on the first day of the month following the month in which
the Participant's Retirement occurs and ending with the month in which the
following occurs:
<TABLE>
<CAPTION>
Key Outside
Executive Plan Management Plan Director Plan
- -------------- --------------- --------------
<S> <C> <C>
the earlier of the earlier of the earlier of
attainment of attainment of attainment of
age 80 or payment age 77 or payment age 80 or payment
of 216 monthly of 180 monthly of 120 monthly
installments installments installments
</TABLE>
(b) The Vested Accrued Benefit of a Participant who has a
termination of Employment prior to his or her Retirement or death (provided such
termination is on good terms, as determined in the sole discretion of the Plan
Administrator, and the Participant signs a general release in a form which
approximates the form attached hereto as Exhibit B) shall be paid in monthly
installments in a manner similar to that in Section 6.1(a), commencing on the
first day of the month following the month in which a Participant attains his or
her applicable Retirement age (see Section 2.19) or dies, if earlier.
(c) Under the Outside Director Plan: Distribution shall be made
in monthly installments equal to one-twelfth of the Participant's annual Vested
Accrued Benefit, commencing as of the first day of the month following the month
in which the Participant's Retirement occurs and ending with the month in which
- 24 -
<PAGE>
occurs the earlier of the Participant's attainment of age 80 or payment of 120
monthly installments.
(d) Under the joint and survivor annuity form available from the
Executive and Key Management Plans, a Participant's Vested Accrued Benefit is
subsidized by the Employer, i.e., there normally is no reduction in the
Participant's Vested Accrued Benefit to provide a joint and survivor annuity.
However, if the Participant's Spouse or Beneficiary is more than ten years
younger than the Participant, the Participant's Vested Accrued Benefit shall be
reduced as provided in the following formula:
Participant's Accrued Benefit times the percentage result obtained
when taking the number of years more than 10 that Participant is
older than Participant's Spouse divided by 100 (e.g., Participant
age 55, Participant's Spouse age 44 = 11 years spread; 11 - 10 =
1/100 = 1% reduction)
6.2 Distribution on Death
---------------------
(a) Unless a Participant has in effect a valid Lump Sum Election
under Section 6.6, upon the death or presumed death of a Participant prior to
Retirement, the Participant's Vested Accrued Benefit shall be paid to the
Participant's Beneficiary (as determined under subsection (d)). Distribution
- 25 -
<PAGE>
shall be made in monthly installments equal to one-twelfth of the Participant's
annual Vested Accrued Benefit, commencing on the first day of the month
following the month in which the Participant dies (or is presumed dead) and
ending with the month in which the Participant's Benefit would have terminated
under Section 6.1 had the Participant's Retirement occurred on the date of his
or her death.
(b) Upon the death or presumed death of a former Participant in
the Outside Director Plan after his or her Retirement but before receiving the
total number of Benefit payments to which the Participant is entitled under
Section 6.1(c), the remaining payments shall be paid to the Participant's
Beneficiary. Distribution shall commence on the first day of the month
following the month in which the Participant dies (or is presumed dead).
(c) Amounts payable under this Section shall be paid to the
highest priority Beneficiary surviving at the time distribution actually
commences. Beneficiary priorities are as follows:
(i) First, to the person or entity properly designated by the
Participant as his or her Beneficiary for purposes of this Plan. Each
Participant may designate, revoke and redesignate Beneficiaries. This
action shall be taken in writing on a form provided by the Plan
Administrator and shall be effective upon delivery to the Plan
Administrator.
- 26 -
<PAGE>
(ii) Second, to the person or persons properly designated by the
Participant as his or her beneficiary under a group life insurance policy
maintained by the Employer, if no Beneficiary designation under paragraph
(i) is on file.
(iii) Third, to the Participant's surviving Spouse, if any, and
otherwise to the heirs at law (including the Participant's estate), if any,
as determined in the reasonable judgment of the Plan Administrator under
applicable state law governing succession to personal property.
(d) Members of a priority class (other than the Participant's
surviving Spouse) shall cease to be entitled to Benefits upon the Plan
Administrator's determination that no members of the class exist or the Plan
Administrator's failure to locate any members of the class after making
reasonable efforts to do so for one year. If all or part of the Participant's
Benefit is distributable to his or her surviving Spouse, such Benefit shall be
distributed to the Spouse or, in the event of the Spouse's death prior to
commencement or completion of distribution, to the estate of the Spouse.
(e) If the Plan Administrator determines that no person eligible
to receive the Participant's Benefit exists or can be located, the Benefit shall
be forfeited. The costs of settling any dispute involving the right of a person
- 27 -
<PAGE>
to a Participant's Benefit after the Participant's death shall be charged to the
Participant's Benefit, which shall be reduced by the amount of the costs
incurred, except as otherwise directed by the Plan Administrator.
6.3 Funeral Benefit
---------------
In addition to any Vested Accrued Benefit payable hereunder, a
Participant's Beneficiary (as determined under Section 6.2(c)) shall be paid a
cash lump sum in the amount of $5,000 to cover funeral expenses of the
Participant. This additional benefit shall only be paid if the Beneficiary
notifies the Employer in writing of the Participant's death and the Participant
has a Vested Accrued Benefit either before death or by reason of death, without
regard to whether any or all of the Vested Accrued Benefit has been paid.
6.4 Delay in Distribution
---------------------
(a) If the amount payable under this Article cannot be
ascertained or the person to whom it is payable has not been determined or
located and reasonable efforts to do so have been made, then distributions under
this Article shall commence, retroactive to the date they would normally have
commenced, within a reasonable time after such amount is ascertained or such
person is determined or located.
- 28 -
<PAGE>
(b) Distribution of Benefits to a Participant shall not be
triggered by the transfer of the Participant to any other job (whether or not
with the Employer or an affiliate) if the transfer is arranged by the Employer.
The Participant's Benefit will commence when the Participant ceases to be
employed be the Employer or by any other company for which the Participant
worked in an Employer-arranged job.
6.5 Suspension of Benefits
----------------------
Benefits which are in pay status shall not be suspended if a
Participant subsequently performs services for the Employer in any capacity
after Retirement.
6.6 Lump-Sum Election
-----------------
(a) Instead of receiving the distribution of his or her Vested
Accrued Benefit in monthly installments as described in Section 6.1(a), a
Participant may elect to receive his or her distribution as a single Lump Sum
Payment. The Lump Sum Payment of a Participant having in effect a valid Lump
Sum Election shall be paid on the first day of the month following the earlier
of the month in which the Participant's Retirement occurs or the month in which
the Participant dies. If the Participant having in effect a valid Lump Sum
Election dies prior to the time the Lump Sum Payment is made to him or her, that
- 29 -
<PAGE>
Participant's Lump Sum Payment shall be paid to the Participant's Beneficiary
(as determined under Section 6.2(c)).
(b) In order for a Participant's Lump Sum Election to be valid,
each of the following requirements must be met:
(i) The Participant must give written notice to the Plan
Administrator that the Participant is making a Lump Sum Election. This
written notice shall be on a form provided by the Plan Administrator and
shall be effective upon delivery to the Plan Administrator;
(ii) The Participant's Lump Sum election must be made during the
Election Period;
(iii) The Participant must be an Employee as of the date he or
she attains his or her applicable Retirement age (see Section 2.19), or if
earlier, the Participant must be an Employee as of the date of his or her
death; and
(iv) The Participant must take Retirement (or die) after December
13, 1990.
(c) A Participant may revoke a Lump Sum Election by delivering
written notice to such effect to the Plan Administrator prior to the end of the
Election Period. A Participant's Lump Sum Election that has not been revoked
prior to the end of the Election Period shall be irrevocable. If a Participant
makes multiple Lump Sum elections and revocations, the last such election or
- 30 -
<PAGE>
revocation made during the Election Period shall be controlling.
(d) A Participant's Lump Sum Payment shall equal the discounted
present value of the monthly payments that would have been payable to the
Participant under Section 6.1(a) had no Lump Sum Election been in effect.
Effective January 1, 1995 for purposes of making this present value calculation,
the "immediate rate" published by the Pension Benefit Guaranty Corporation, or
such other index as selected by the Plan Administrator then in effect at the
time of payment, shall be used.
ARTICLE VII
-----------
ADMINISTRATION OF THE PLAN
--------------------------
7.1 Duties of the Plan Administrator
--------------------------------
The Plan Administrator shall be responsible for the general
administration and management of the Plan. The Plan Administrator shall have
all powers and duties necessary to fulfill its responsibilities, including, but
not limited to, the following powers and duties:
(a) To determine all questions relating to the eligibility of
persons to participate;
(b) To determine the amount and kind of benefits payable to
Participants and their Beneficiaries;
- 31 -
<PAGE>
(c) To maintain all records necessary for the administration of
the Plan;
(d) To provide for disclosure of all information and filing or
provision of all reports and statements to Participants, Spouses, Beneficiaries
or governmental bodies as shall be required by ERISA or any other federal law;
(e) To adopt or modify Plan Rules for the regulation or
application of the Plan (see Exhibit A); such Rules may establish administrative
procedures or requirements which modify the terms of this Plan but Plan Rules
shall not substantially alter significant requirements or provisions of the
Plan;
(f) To administer the claims procedure set forth in Section 7.4;
(g) To delegate any power or duty to any firm or person in
accordance with Section 7.2; and
(h) To exercise all other powers or duties granted to the Plan
Administrator by other provisions of the Plan.
7.2 Delegation of Administrative Responsibility
-------------------------------------------
(a) The Plan Administrator may delegate all or any portion of
its administrative responsibilities with respect to the Plan to any other person
pursuant to this Section.
- 32 -
<PAGE>
(b) A delegation under this Section shall be accomplished by a
written instrument executed by the Plan Administrator specifying
responsibilities delegated and the fiduciary responsibilities allocated to such
delegate. The delegation of such responsibilities shall be effective upon the
date specified in the delegation, subject to written acceptance by the delegate.
Any delegation of responsibilities shall provide for reports, no less often than
annually, by such delegate to the Plan Administrator of such information
necessary to fully inform the Plan Administrator of the status and operation of
the Plan and of the delegate's discharge of responsibilities delegated.
7.3 Compensation, Expenses and Indemnity
-------------------------------------
(a) The Plan Administrator and any delegate under Section 7.2
who is an Employee shall serve without compensation for services to the Plan.
The Employer shall furnish the Plan Administrator or any such delegate with all
clerical or other assistance necessary in the performance of his or her duties.
The Plan Administrator is authorized to employ such legal counsel and advisors
as it may deem advisable to assist in the performance of its duties hereunder.
(b) All costs of administering the Plan (including the cost of
legal services described in subsection (a)) shall be paid by the Employer.
Except as the Plan Administrator otherwise directs, any expenses incurred in
- 33 -
<PAGE>
resolving disputes among different claimants as to their entitlement to a
Benefit shall be charged against the Benefit, which shall be reduced
accordingly.
(c) To the extent permitted by applicable law, the Employer
shall indemnify and save harmless the Board of Directors, the Plan Administrator
and any delegate appointed pursuant to Section 7.2 who is an Employee against
any and all expenses, liabilities and claims (including legal fees incurred to
defend against such liabilities and claims) arising out of their discharge in
good faith of responsibilities under or incident to the Plan. Expenses and
liabilities arising out of willful misconduct shall not be covered under this
indemnity. This indemnity shall not preclude such further indemnities as may be
available under insurance purchased by the Employer or provided by the Employer
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, as such indemnities are permitted under applicable law. Payments
with respect to any indemnity and payment of expenses or fees shall be made only
from assets of the Employer.
7.4 Claims Procedure
----------------
(a) Normally, a Participant, Spouse or Beneficiary need not
present a formal claim for Benefits in order to qualify for rights or Benefits
under this Plan. If, however, any person is not granted the rights or Benefits
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<PAGE>
to which the person believes himself or herself to be entitled, a formal claim
for Benefits must be filed in accordance with this Section. A claim by any
person shall be presented to the claims official appointed by the Plan
Administrator in writing within the maximum time permitted by law or under
regulations promulgated by the Secretary of Labor or his delegate pertaining to
claims procedures. The claims official shall, within a reasonable time,
consider the claim and shall issue his or her determination thereon in writing.
If the claim is granted, the appropriate distribution or payment shall be made.
(b) If the claim is wholly or partially denied, the claims
official shall, within ninety days (or such longer period as may be reasonably
necessary) provide the claimant with written notice of the denial, setting
forth, in a manner calculated to be understood by the claimant
(i) the specific reason or reasons for the denial,
(ii) specific references to pertinent Plan provisions on which
the denial is based,
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
the material or information is necessary, and
- 35 -
<PAGE>
(iv) an explanation of the Plan's claim review procedure.
(c) Each claimant shall have the opportunity to appeal in
writing the claims official's denial of a claim to a review official designated
by the Plan Administrator for a full and fair review. The claimant or his or
her duly authorized representative
(i) may request a review by filing a written application with
the review official,
(ii) may review pertinent documents, and
(iii) may submit issues and comments in writing.
(d) The Plan Administrator may establish time limits within
which a claimant may request review of a denied claim which are reasonable in
relation to the nature of the benefit which is the subject of the claim and
other attendant circumstances, but which shall not be less than sixty days after
receipt by the claimant of written notice of denial of his or her claim.
(e) The decision by the review official upon review of a claim
shall be made not later than sixty days after his or her receipt of the request
for review, unless special circumstances require an extension of time for
processing, in which case a decision shall be rendered as soon as possible, but
not later than one hundred twenty days after receipt of the request for review.
- 36 -
<PAGE>
(f) The decision on review shall be in writing and shall include
specific reasons for the decision written in a manner calculated to be
understood by the claimant, with specific references to the pertinent Plan
provisions on which the decision is based.
(g) To the extent permitted by law, the decision of the claims
official (if no review is properly requested) or the decision of the review
official on review, as the case may be, shall be final and binding on all
parties. No legal action for Benefits under the Plan shall be brought unless
and until the claimant has exhausted his or her remedies under this Section.
7.5 Effect of Plan Administrator Action
-----------------------------------
(a) All actions taken and all determinations made by the Plan
Administrator in good faith shall be final and binding upon all Participants,
Spouses, Beneficiaries and other persons interested in the Plan. To the extent
the Plan Administrator has been granted discretionary authority under the Plan,
its prior exercise of such authority shall not obligate the Plan Administrator
to exercise its authority in a like fashion thereafter.
(b) The Plan shall be interpreted by the Plan Administrator in
accordance with its terms and their intended meaning. If, due to errors in
drafting, a provision does not accurately reflect its intended meaning, as
demonstrated by consistent interpretations by the Plan Administrator or other
- 37 -
<PAGE>
evidence of intention, the provision shall be considered ambiguous and shall be
interpreted by the Plan Administrator in a fashion consistent with its intent.
The Plan Administrator, without the need for Board of Directors approval, shall
amend the Plan retroactively to cure any such ambiguity. This subsection may
not be invoked by a Participant, Beneficiary or any other person to require the
Plan to be interpreted in a manner which is inconsistent with its interpretation
by the Plan Administrator.
ARTICLE VIII
------------
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
8.1 Amendments
----------
(a) The Employer reserves the right at any time to amend the
Plan or to merge, consolidate, divide or otherwise restructure the Plan
prospectively or retroactively.
(b) All amendments or other changes shall be adopted in writing
by resolution of the Board of Directors or, in the case of an amendment that
does not substantially alter the nature or expense of the Plan, by the Plan
Administrator without Board approval. However, the Plan Administrator may, by
notice to a Participant without Board approval, increase the Participant's
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<PAGE>
Benefit or Benefit Bank at any time.
(c) Any material modification of the Plan by amendment or
termination shall be communicated to all interested parties in the time and
manner required by law.
(d) No Plan amendment, unless it expressly provides otherwise,
shall be applied retroactively to increase the Vested percentage of a former
Participant whose Employment terminated before the date the amendment became
effective.
(e) No Plan amendment, unless it expressly provides otherwise,
shall be applied retroactively to increase the amount of service credited to any
person for Employment before the date the amendment became effective.
(f) Except as provided in subsections (d) and (e), all rights
under the Plan shall be determined under the terms of the Plan as in effect at
the time the determination is made.
8.2 Termination of Plan
-------------------
The Plan is intended to be a permanent program, but the Employer
shall have the right at any time to declare the Plan terminated completely as to
it or as to any of the Employer's divisions, facilities, operational units or
job classifications. If the Plan is terminated, all unvested Benefits shall be
forfeited but all Vested Benefits shall remain payable. The Employer may
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<PAGE>
accelerate the payment of such Benefits, however, and pay the person entitled to
the Benefit the present value of the remaining payments due (calculated using a
reasonable interest assumption specified by the Plan Administrator).
ARTICLE IX
----------
MISCELLANEOUS PROVISIONS
------------------------
9.1 Payments
--------
(a) In the event any amount becomes payable under the Plan to a
minor or a person who, in the sole judgment of the Plan Administrator, is
considered to be unable to give a valid receipt for the payment by reason of
physical or mental condition, the Plan Administrator may direct that payment be
made to any person found by the Plan Administrator, in its sole judgment, to
have assumed the care of the person in question. Any payment made pursuant to
such a finding shall constitute payment by the Plan and result in a full release
and discharge of the Plan Administrator, the Employer and their officers,
directors, employees, agents and representatives.
(b) Payment of Benefits to the person entitled thereto may be
made by a check sent first class mail, address correction requested, to the last
known address on file with the Plan Administrator. If within six months from
- 40 -
<PAGE>
the date of issuance of the check the payment letter cannot be delivered to the
person entitled thereto or the check has not been negotiated, all further
Benefits under the Plan may be forfeited at the discretion of the Plan
Administrator.
(c) If the Plan Administrator retains at the Plan's expense a
private investigator or other person or service to assist in locating a missing
person, all costs incurred for such services shall be paid by the Plan but
charged to the Benefit to which the missing person was entitled (which shall be
reduced by the amount of the costs incurred), except as the Plan Administrator
may otherwise direct.
(d) Payments to Participants or Beneficiaries may be postponed
by the Plan Administrator until any anticipated taxes which must be paid or
withheld or amounts to be paid under a domestic relations order have been paid
in full or until it is determined that such charges will not be imposed.
9.2 Consolidation or Merger of Companies
------------------------------------
In the event of the consolidation or merger of the Employer with
or into any other business entity, or the sale by the Employer of all of its
assets, the successor may continue the Plan by adopting the same by resolution
of its board of directors or agreement of its partners or proprietor. This Plan
- 41 -
<PAGE>
shall not be construed as preventing the Employer from selling, transferring or
otherwise disposing of all or any part of the business or assets of the Employer
and the purchaser of all or any part of the Employer shall not be obligated to
continue this Plan. If, within ninety days from the effective date of a
consolidation, merger or sale of assets, the new corporation, partnership or
proprietorship does not adopt the Plan, the Plan shall be terminated in
accordance with Section 8.2.
9.3 Alienation
----------
The rights of a Participant, Spouse or Beneficiary under the Plan
shall not be subject to any claim of any creditor nor to attachment or
garnishment or other legal process by any creditor. A Participant or
Beneficiary shall not have the right to alienate, anticipate, commute, pledge,
encumber or assign any of the benefits or payments or proceeds which the
individual may expect to receive, contingently or otherwise, under the Plan.
The provisions of this Section shall not preclude any assignment or alienation
expressly required under applicable law or other provisions of the Plan.
- 42 -
<PAGE>
9.4 Division of Benefits by Domestic Relations Orders
-------------------------------------------------
(a) This Plan will follow the terms of any qualified domestic
relations order issued with respect to a Participant. However, except as
provided in subsection (e), the Plan will only follow orders which meet all of
the requirements of subsection (b) or subsection (c). Subsection (c)
establishes an optional standardized procedure.
(b) A "qualified domestic relations order" is any judgment,
decree or order, including the approval of a property settlement agreement,
issued by a court of competent jurisdiction, provided that
(i) the order relates to the provision of child support, alimony
or marital property rights and is made pursuant to state domestic relations
or community property laws;
(ii) the order creates or recognizes the existence of an
alternate payee's right to receive all or a portion of a Participant's
Accrued Benefit;
(iii) the order specifies the name and last unknown mailing
address of the Participant and each alternate payee covered by the order;
(iv) the order precisely specifies the amount or percentage of
the Participant's Accrued Benefit to be paid to each alternate payee or the
manner in which the amount or percentage is to be determined;
- 43 -
<PAGE>
(v) the order specifies the number of payments or the period to
which the order applies;
(vi) the order specifically names this Plan as the plan to which
the order applies;
(vii) the order does not require this Plan to provide any type
of benefits or form of benefits not otherwise provided under this Plan;
(viii) the order does not require the payment of benefits to an
alternate payee which are required to be paid to another alternate payee
under another order previously determined by the Plan Administrator to be a
qualified domestic relations order; and
(ix) (if the order requires that payments to the alternate payee
commence before they commence with respect to the Participant) the order (1)
specifies that payments will not commence before the earlier of (a) the date
on which the Participant attains age fifty or the first date on which the
Participant could begin receiving benefits under the Plan if the
Participant's Employment terminated, whichever is later, or (b) the date
benefits first become payable to the Participant and (2) does not permit the
alternate payee to elect a joint and survivor annuity covering the alternate
payee and a spouse (other than the Participant).
- 44 -
<PAGE>
A qualified domestic relations order may provide that a former Spouse of the
Participant is to be treated as a surviving Spouse for purposes of the
pre-retirement or post-retirement joint and survivor annuity provisions of this
Plan. Subsection (d) sets forth the procedures under which the Plan
Administrator shall determine whether a domestic relations order property
qualifies.
(c) The Plan Administrator at its discretion may furnish on
request a standard form of qualified domestic relations order to a Participant
or any other person. This order may provide for an immediate lump sum payment
of the actuarial equivalent of the amount to which the alternate payee is
determined to be entitled. If this form is used without substantial
modification and is incorporated in a judgment, decree or order described in
subsection (b)(i) which on its face appears to be valid, the Plan Administrator
shall treat it as a qualified domestic relations order and shall pay benefits to
the alternate payee in accordance with its terms. If this procedure is not
followed, the alternate payee (1) must wait until the time described in
subsection (b)(ix) before benefits which are not in pay status can become
payable to the alternate payee and (2) cannot use any special forms of benefit
payment authorized in the standard form of order. Any special benefit form
provisions in standard domestic relations orders adopted by the Plan
Administrator shall be authorized as benefit options under this Plan, but only
- 45 -
<PAGE>
as to alternate payees for whom the standard order has been used.
(d) The Plan Administrator need not treat any judgment, decree
or order as a qualified domestic relations order unless it meets all of the
requirements set forth in subsection (b) or (c) and is sufficiently precise and
unambiguous so as to preclude any interpretative disputes. If the order meets
these requirements, the Plan Administrator shall follow the terms of the order
whether or not this Plan has been joined as a party to the litigation out of
which the order arises. Upon receipt of a domestic relations order, the Plan
Administrator shall notify the Participant and each alternate payee of (1) its
receipt of the order and (2) its need to determine the qualified status of the
order in accordance with subsection (b) or (c). An alternate payee may
designate a representative to receive copies of future notices with respect to
the qualified status of the order. To the extent an order calls for benefits to
be paid to an alternate payee before the qualified nature of the order is
determined, a separate account shall be established to hold the benefit payments
affected by the order. This account shall be administered in accordance with
the rules set forth in Section 206(d)(3)(H) of ERISA.
(e) The Plan Administrator in its discretion may treat a
property settlement agreement or stipulation which is not contained in a
judgment, decree or order as a qualified domestic relations order if it meets
- 46 -
<PAGE>
all of the other requirements of this Section.
9.5 Duty to Provide Data
--------------------
(a) Every person with an interest in the Plan or claiming
Benefits under the Plan shall furnish the Plan Administrator on a timely and
accurate basis with such documents, evidence or information as it considers
necessary or desirable for the purpose of administering the Plan. The Plan
Administrator may postpone payment of Benefits until such information and such
documents have been furnished.
(b) Every person claiming a Benefit under this Plan shall give
written notice to the Plan Administrator of his or her post office address and
each change of post office address. Any communication, statement or notice
addressed to such a person at his or her latest post office address as filed
with the Plan Administrator will, on deposit in the United States mail with
postage prepaid, be as binding upon such person for all purposes of the Plan as
if it had been received, whether actually received or not. If a person fails to
give notice of his or her correct address, the Plan Administrator, the Employer
and Plan fiduciaries shall not be obliged to search for, or to ascertain, his or
her whereabouts.
- 47 -
<PAGE>
9.6 Limitation on Rights of Employees
---------------------------------
The Plan is strictly a voluntary undertaking on the part of the
Employer and shall not constitute a contract between the Employer and any
Participant, or consideration for, or an inducement or condition of, the
employment of a Participant. Except as otherwise required by law or written
contract, nothing contained in the Plan shall give any Participant the right to
be retained in the service of the Employer or to interfere with or restrict the
right of the Employer, which is hereby expressly reserved, to discharge or
retire any Participant at any time, with or without cause. Except as otherwise
required by law, inclusion under the Plan will not give any Participant any
right or claim to any benefit hereunder except to the extent such right has
specifically become fixed under the terms of the Plan. If any dispute arises
under the Plan between a Participant and the Employer or any of its
subsidiaries, such subsidiary or any other Participant shall not be necessary
parties to the dispute and need not be named in any litigation or arbitration.
This Plan shall not obligate the Employer to maintain a minimum net worth in
order to insure payment of Benefits. The doctrine of substantial performance
shall have no application to Employees, Participants or Beneficiaries. Each
condition and provision, including numerical items, has been carefully
- 48 -
<PAGE>
considered and constitutes the minimum limit on performance which will give rise
to the applicable right.
9.7 Restrictions
------------
A Participant shall not at any time, either directly or
indirectly, accept employment with, render service, assistance or advice to, or
allow his or her name to be used by any competitor of the Employer unless
approved by the Executive Committee of the Board of Directors. Determination by
the Executive Committee of the Board of Directors that the Participant has
engaged in any such activity shall be binding and conclusive on all parties, and
in addition to all other rights and remedies which the Employer shall have,
neither the Participant nor his or her Spouse nor any of his or her
Beneficiaries shall be entitled to any payments hereunder.
9.8 Service of Process
------------------
The Secretary of Bergen Brunswig Corporation is hereby designated
as agent for the service of legal process on the Plan.
9.9 Governing Law
--------------
The Plan shall be interpreted, administered and enforced in
accordance with ERISA, and the rights of Participants, former Participants,
Spouses, Beneficiaries and all other persons shall be determined in accordance
with this law. To the extent that state law is applicable, however, the laws of
- 49 -
<PAGE>
the State of California shall apply, except as provided in Section 6.2 (relating
to determination of heirs at law).
9.10 Plurals
-------
Where the context so indicates, the singular shall include the
plural and vice versa.
9.11 Titles
------
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Plan.
9.12 References
----------
Unless the context clearly indicates to the contrary, a reference
to a Plan provision, statute, regulation or document shall be construed as
referring to any subsequently enacted, adopted or executed counterpart.
Executed at Orange, California, this ____ day of December, 1995.
BERGEN BRUNSWIG CORPORATION
By ____________________________
Executive Vice President, Chief
Legal Officer & Secretary
- 50 -
<PAGE>
EXHIBIT A
---------
PLAN RULES
----------
As permitted by Sections 2.17 and 7.1 of the Plan, the Plan
Administrator may adopt Plan Rules for the administration and interpretation of
the Plan. These Rules may be changed from time to time. The Plan Rules shall
consist of the Rules set forth in this document, in administrative forms adopted
by the Plan Administrator or in written or oral policy decisions or
interpretations made by the Plan Administrator. The Plan Administrator has
broad powers to establish administrative procedures and to interpret the Plan by
means of Plan Rules.
Plan Rules adopted by the Plan Administrator may be set forth
below, together with the date adopted.
- 51 -
<TABLE>
<CAPTION>
Exhibit 12.1
BERGEN BRUNSWIG CORPORATION
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE YEARS ENDED SEPTEMBER 30, 1995 AND 1994,
AND THE YEARS ENDED AUGUST 31, 1993, 1992 AND 1991
(In thousands, except ratios)
Year Ended
----------------------------------------------------------------
September 30, August 31,
---------------------- ------------------------------------
1995 1994 1993 1992 1991
---------------------- ------------------------------------
<S> <C> <C> <C> <C> <C>
Fixed Charges:
Interest and amortization of debt issuance costs......... $ 32,800 $ 25,039 $ 27,085 $ 15,476 $ 14,528
Portion of rental expense representing interest.......... 5,661 5,299 5,495 4,935 5,281
--------- --------- --------- --------- ----------
Total fixed charges.................................. 38,461 30,338 32,580 20,411 19,809
Earnings:
Earnings from continuing operations before
taxes on income........................................ 109,490 98,112 48,260 83,470 89,626
--------- --------- --------- --------- ----------
Total earnings.................................... $ 147,951 $ 128,450 $ 80,840 $ 103,881 $ 109,435
========= ========= ========= ========= ==========
Ratio of earnings to fixed charges......................... 3.8 4.2 2.5 5.1 5.5
========= ========= ========= ========= ==========
</TABLE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Bergen Brunswig Corporation on Form S-3 of our report dated November 1, 1995,
appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for
the fiscal year ended September 30, 1995, and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Costa Mesa, California
February 1, 1996
EXHIBIT 25.1
CONFORMED
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
__________________________
CHEMICAL TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
CALIFORNIA 94-2926573
(State of incorporation (I.R.S. employer
if not a national bank) Identification No.)
50 California Street
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
__________________________
Bergen Brunswig Corporation
(Exact name of Obligor as specified in its charter)
New Jersey 22-1444512
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
4000 Metropolitan Drive
Orange, California 92668-3510
(Address of principal executive offices) (Zip Code)
__________________________
___% Debt Securities
(Title of indenture securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Superintendent of Banks of the State of California,
235 Montgomery Street, San Francisco, CA 94104-2980.
Board of Governors of the Federal Reserve System,
Washington, D.C. 20511.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor and Underwriters.
If the Obligor or any Underwriter for the Obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation with the Obligor or Underwriters.
(Item 2 is at the date hereof based upon incomplete information but is
believed to be correct and may be considered to be complete unless modified
by an amendment to this Form T-1).
16. List of Exhibits.
Exhibit 1. Articles of Incorporation of the Trustee as Now in Effect.
Exhibit 2. Certificate of Authority of the Trustee to Commence
Business.
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (Contained in Exhibit 2.)
Exhibit 4. Existing By-Laws of the Trustee.
Exhibit 5. Not Applicable
Exhibit 6. Consent of the Trustee.
Exhibit 7. Report of Condition of the Trustee
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Trust Company of California, a corporation organized and
existing under the laws of the State of California, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of San Francisco and
State of California, on the 26th day of January, 1996
CHEMICAL TRUST COMPANY OF CALIFORNIA
By s/JAMES NAGY
----------------------------------
Assistant Vice President
<PAGE>
Exhibit 1. Restated Articles of Incorporation of the Trustee as
now in Effect.
================================================================================
<PAGE>
RESTATED ARTICLES OF INCORPORATION
----------------------------------
OF
--
MANUFACTURES HANOVER TRUST COMPANY OF CALIFORNIA
------------------------------------------------
Lynn E. Loveall and Denise M. Westermark hereby certify as follows.
1. They are the vice president and the assistant secretary, respectively,
of Manufacturers Hanover Trust Company of California.
2. The Articles of Incorporation of Manufacturers Hanover Trust Company
of California are amended and restated to read in full as follows:
One: The name of the Corporation is:
Manufacturers Hanover Trust Company of California
Two: The purpose of the corporation is to engage in the commercial banking
business and the trust business and any other lawful activities which are not,
by applicable laws or regulations, prohibited to a commercial bank authorized to
engage in the trust business; provided, however, that this corporation shall not
engage in the business of making loans, investments or accepting deposits except
for (a) deposits that are generated from trust funds not currently invested and
that are properly secured to the extent required by law; (b) deposits
representing funds received for a special use in the capacity of managing agent
or custodian for an owner of , or investor in, real property, securities, or
other personal property; or for such owner or investor as agent or custodian of
funds held for investment or as escrow agent; or for an issuer of , or broker or
dealer in securities, in ac capacity such as paying agent, dividend disbursing
agent, or securities clearing agent; provided such deposits are not employed by
or for the account of the customer in the manner of a general purpose checking
account or interest-bearing account; or (c) making call loans to securities
dealers or purchasing money market instruments such as certificates of deposit,
commercial paper, government or municipal securities, and bankers acceptances;
provided, however that such authorized loans and investments may not be used as
a method of channeling funds to non banking affiliates of the corporation.
Three: The total number of shares which the corporation is authorized to
issue is one hundred (100) shares of $100 par value each. The shares of the
corporation are subject to assessment by the corporation by order of the
Superintendent of Banks of the State of California for the purpose of correcting
an impairment of contributed capital in the manner and to the extent provided in
Division 1 of the California Financial Code.
Four: No amendment to these Articles of Incorporation shall become
effective unless the certificate of amendment or other instrument setting forth
such amendment is filed with the Secretary of State of the State of California
with the approval of the Superintendent of Banks of the State of California
endorsed thereon. Promptly after the amendment becomes effective, a copy of
such certificate of amendment or other instrument certified by the Secretary of
State shall be filed with the Superintendent of Banks.
<PAGE>
3. The amendment and restatement set forth herein have been duly approved
by the Board of Directors of Manufacturers Hanover Trust Company of California.
4. The amendment and restatement set forth herein have been duly approved
by the required vote of shareholders in accordance with sections 902 and 903 of
the California Corporation Code. The corporation has outstanding 100 shares.
The number of shares voting in favor of the amendment exceeded 50%, satisfying
the voting requirements necessary to pass the amendment.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge
Dated: 12/23/86 /s Lynn C. Loveall
---------------- ------------------------------
Lynn C. Loveall
Vice President
/s Denise M. Westermark
------------------------------
Denise M. Westermark
Assistant Secretary
<PAGE>
Exhibit 2. Certificate of Authority of the Trustee to Commence Business.
================================================================================
No. 1476
State of California
-------------------
State Banking Department
------------------------
Whereas, after due examination it appears that Chemical Trust Company of
California having its principal place of business in the City and County of San
Francisco, State of California, has complied with all the provisions of the
Banking Law of the State of California, and with all other necessary
requirements of law relating thereto;
Now Therefore, I, the undersigned, Superintendent of Banks of the State of
California, do certify that said bank is qualified and is hereby authorized to
transact a trust banking business at 50 California Street in the City and County
of San Francisco, State of California.
In Testimony Whereof witness my hand and Seal this 29th day of April, 1984
at San Francisco, California.
/s LOUIS CARTER
Superintendent of Banks
State of California
(Seal of Superintendent of Banks
of the State of California)
<PAGE>
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers.
================================================================================
(Contained in Exhibit 2.)
<PAGE>
Exhibit 4. Existing By-laws of the Trustee.
================================================================================
<PAGE>
BY-LAWS
-------
OF
--
CHEMICAL TRUST COMPANY OF CALIFORNIA
------------------------------------
(successor by merger to MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA)
ARTICLE I
---------
PRINCIPAL OFFICE
-----------------
Section 1. The head office for the transaction of the business of the
corporation is hereby fixed and located at San Francisco, California. The Board
of Directors may change said head office from one location to another with the
written approval of the Superintendent of Banks of the State of California.
Section 2. The Board of Directors may establish and maintain one or more
branch offices within the State of California when authorized by the
Superintendent of Banks of the State of California.
ARTICLE II
----------
Meetings of Shareholders
------------------------
Section 1. All meetings of the shareholders shall be held at any place
within or without the State of California which may be designated either by the
Board of Directors or by the written consent of all shareholders entitled to
vote thereat and not present at the meeting given either before or after the
meeting and filed with the secretary of the corporation. In the absence of any
such designation, shareholders' meetings shall be held at the head office of the
corporation.
Section 2. The annual meeting of the shareholders of the corporation shall
be held at such time in each year as may be designated from time to time by the
Board of Directors. At such meeting, directors shall be elected and any other
proper business may be transacted which is within the powers of the
shareholders. Written notice of each annual meeting shall be given to each
shareholder entitled to vote either personally or by first-class mail or other
means of written communication (which includes, without limitation and wherever
used in these By-Laws, telegraphic and facsimile communication), charges
prepaid, addressed to each shareholder at the address appearing on the books of
the corporation, or given by the shareholder to the corporation for the purpose
of notice. If any notice or report addressed to the shareholder at the address
of such shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder upon written demand of the shareholder at the principal
<PAGE>
executive office of the corporation for a period of one (1) year from the date
of the giving of the notice or report to all other shareholders. If no address
of a shareholder appears on the books of the corporation or is given by the
shareholder to the corporation, notice is duly given to him if sent by mail or
other means of written communication addressed to the place where the principal
executive office of the corporation is located or if published at least once in
a newspaper or general circulation in the county in which said principal
executive office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the United States mail or delivered to a
common carrier for transmission to the recipient or actually transmitted by the
person giving the notice by electronic means to the recipient or sent by other
means of written communication.
Such notices shall state:
(a) the place, date and hour of the meeting;
(b) those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees intended at the
time of the notice to be presented by management for election; and
(d) such other matters, if any, as may be expressly required by statute.
Section 3. Special meetings of the shareholders for the purpose of taking
any action permitted to be taken by the shareholders under the General
Corporation Law, the California Banking Law and the Articles of Incorporation of
this corporation, may be called by the chairman of the board or the president,
or by any vice president, or by the Board of Directors, or by the holders of
shares entitled to cast not less than ten percent (10%) of the votes at the
meeting. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner and
contain the same statements as required for annual meetings of shareholders.
Notice of any special meeting shall also specify the general nature of the
business to be transacted, and no other business may be transacted at such
meeting.
Section 4. The presence in person or by proxy of the holders of a majority
of the shares entitled to vote at any meeting shall constitute a quorum for the
transaction of business. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum. In the absence
of a quorum, any meeting of shareholders may be adjourned from time to time by
the vote of a majority of the shares represented either in person or by proxy,
but no other business may be transacted except as provided in the preceding
sentence.
Section 5. The affirmative vote of a majority of the shares represented and
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively shall constitute at least a majority of the required quorum) shall
<PAGE>
be the act of the shareholders except as may otherwise be provided by (i)
Section 4 of this Article II, (ii) the cumulative voting provisions for this
election of directors as stated in this Section below, and (iii) the California
General Corporation Law, the California Banking Law or the Articles of
Incorporation of this corporation. Subject to the requirements of the next
sentence, every shareholder entitled to vote at any election for directors may
cumulate his votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which his shares
are normally entitled, or distribute his votes on the same principle among as
many candidates as he shall think fit. No shareholder shall be entitled to
cumulate votes unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate his
votes. If any one shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination. The candidates receiving the
highest number of votes of shares entitled to be voted for them, up to the
number of directors to be elected, shall be elected.
Section 6. Any action which, under any provision of the laws of the State
of California, may be taken at a meeting of the shareholders, may be taken
without a meeting if authorized by a writing signed by persons entitled to vote
a majority of the shares of the corporation, and filed with the secretary of the
corporation.
Section 7. Every person entitled to vote or execute consents shall have
the right to do so either in person or by one or more agents authorized by a
written proxy executed by such person or his duly authorized agent and filed
with the secretary. Proxies shall be valid and shall be executed in accordance
with Section 705 of the General Corporation Law or successor section thereto.
ARTICLE III
-----------
Board of Directors
------------------
Section 1. Subject to the provisions of the California General Corporation
Law, the California Banking Law and any limitations in the Articles of
Incorporation and these By-Laws as to action to be authorized or approved by the
shareholders, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the Board
of Directors.
Section 2. The authorized number of directors shall not be less than six
(6) nor more than eleven (11). The exact authorized number of directors shall
be fixed from time to time, within the limits specified in this Section or in
the Articles of Incorporation, by the Board of Directors, or by a By-law or
amendment thereof duly adopted by the vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum), or by the written consent of the holders of a majority of the
outstanding shares entitled to vote, until changed by a duly adopted amendment
to the Articles of Incorporation or by an amendment to this Section adopted by
approval of the holders of a majority of the outstanding shares. No amendment
shall be adopted reducing the minimum authorized number of Directors to a number
less than five (5).
<PAGE>
Section 3. The directors shall be elected at each annual meeting of
shareholders, but if any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose or by unanimous written consent of all shares
entitled to vote for the election of directors. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected, except as otherwise provided by statute.
Section 4. Vacancies in the Board of Directors, except for a vacancy
created by the removal of a director, may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director.
Section 5. Each director upon taking office, after the corporation's
receipt of a Certificate of Authority to transact business as a trust company
from the Superintendent of Banks of the State of California, shall make an oath
or affirmation as required by Section 682 of the California Financial Code or
successor section thereto, and each such oath, subscribed by the director and
certified by the officer before whom it is taken, shall be immediately filed
with the Superintendent of Banks.
ARTICLE IV
----------
Meetings of Directors
---------------------
Section 1. The Board of Directors shall hold a regular or special meeting
at least once each calendar month. Regular meetings of the Board of Directors
shall be held at any time and place within the State of California that has been
designated by resolution from time to time by the Board of Directors. In the
absence of such designation, regular meetings shall be held at the head office
of the corporation, except as otherwise provided in this Section 1. Immediately
following each annual meeting of the shareholders there shall be a regular
meeting of the Board of Directors of the corporation within the State of
California at the place of said annual meeting or at such other place as shall
have been designated by the Board of Directors for the purpose of organization,
election of officers and the transaction of other business. Other regular
meetings of the Board of Directors shall be held without call on such date and
time as may be fixed by the Board of Directors; provided, however, that should
any such day fall on a legal holiday, then said meeting shall be held at the
same time on the next business day thereafter ensuing which is not a legal
holiday. Notice of regular meetings of the directors is hereby dispensed with
and no notice whatever of any such meeting need be given, provided that notice
of any change in the time or place of regular meetings shall be given to all of
the directors in the same manner as notice for special meetings of the Board of
Directors.
Section 2. Special meetings of the Board of Directors may be held at any
place within or without the State of California which has been designated in the
notice of the meeting, or, if not designated in the notice or if there is no
notice, at the head office of the corporation. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by the chairman
of the Board or president or by any two directors. Notice of the time and place
of special meetings shall be delivered personally or by telephone to each
director, or sent by first-class mail or telegram or facsimile transmission,
charges prepaid, addressed to him at his address as it appears upon the records
of the corporation or, if it is not so shown on the records and is not readily
ascertainable, at the place at which the meetings of the directors are regularly
held. In case such notice is mailed, it shall be deposited in the United States
mail at least four (4) days prior to the time of the holding of the meeting. In
<PAGE>
case such notice is telegraphed or sent by facsimile transmission, it shall be
delivered to a common carrier for transmission to the director or actually
transmitted by the person giving the notice by electronic means to the director
at least twenty-four (24) hours prior to the time of the holding of the meeting.
Any notice given personally or by telephone may be communicated to either the
director or to a person at the office of the director whom the person giving the
notice has reason to believe will promptly communicate it to the director. Such
deposit in the mail, delivery to a common carrier, transmission by electronic
means or delivery, personally or by telephone, as above provided, shall be due,
legal and personal notice to such directors. The notice need not specify the
place of the meeting if the meeting is to be held at the head office of the
corporation, and need not specify the purpose of the meeting.
Section 3. Presence of a majority of the authorized number of directors at
a meeting of the Board of Directors constitutes a quorum for the transaction of
business, except as hereinafter provided. Every act or decision done or made by
a majority of the directors present at a meeting duly held at which a quorum is
present shall be deemed the act of the Board of Directors, subject to the
provisions of Section 310, 311 and 317 of the California General Corporation
Law. Members of the Board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting. A majority of the directors
present, whether or not a quorum is present, may adjourn any meeting to another
time and place. If the meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors who were not present at
the time of the adjournment.
Section 4. Notice of a meeting need not be given to any director who signs
a waiver of notice or consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
such director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 5. Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
Section 6. The provisions of this Article IV shall also apply, with
necessary changes in points of detail, to committees of the Board of Directors,
if any, and to actions by such committees (except that regular meetings of
committees shall be established by the committees and except that special
meetings of a committee may also be called at any time by any two members of the
committee), unless otherwise provided by these By-Laws or by the resolution of
the Board of Directors designating such committees. For such purpose,
references to "the Board" or "the Board of Directors" shall be deemed to refer
to each such committee and references to "directors" or "members of the Board"
shall be deemed to refer to members of the committee. Committees of the Board
of Directors may be designated, and shall be subject to the limitations on their
authority, as provided in Section 311 of the General Corporation Law or any
successor section thereto. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
<PAGE>
Section 7. Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement for expenses,
as may be fixed or determined by resolution of the Board.
ARTICLE V
---------
Officers
--------
Section 1. The officers of the corporation shall be a chairman of the
board or a president or a general manager, or any combination of the foregoing,
a secretary, and a treasurer, who shall also be the chief financial officer of
the corporation. The corporation may also have, at the discretion of the Board
of Directors, one or more executive vice presidents, senior vice presidents and
vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be designated from time to time by
the Board of Directors. Any number of offices may be held by the same person.
The officers shall be elected by the Board of Directors and shall hold office at
the pleasure of such Board.
Chairman of the Board
---------------------
Section 2. The chairman of the board, if there be such officer, shall, if
present, preside at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned to him
by the Board of Directors or prescribed by the By-Laws.
President
---------
Section 3. Subject to such powers and duties, if any, as may be prescribed
by these By-Laws or the Board of Directors for the chairman of the board, if
there be such officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be none, at all meetings of
the Board of Directors. He shall have all the powers and shall perform all of
the duties which are ordinarily inherent in the office of the president, and he
shall have such further powers and shall perform such further duties as may be
prescribed for him by the Board of Directors.
General Manager
---------------
Section 4. In the absence or disability or refusal to act of the
president, the general manager shall perform all of the duties of the president
and when so acting shall have all the powers of and be subject to all the
restrictions upon the president.
<PAGE>
Vice Presidents
---------------
Section 5. In the absence or disability or refusal to act of the president
or the general manager, the executive vice president designated by the president
or the general manager or the Board of Directors, or, if there be none, the
senior vice president so designated, or if there be none, the vice president so
designated shall perform all of the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president. The executive vice presidents, the senior vice presidents and the
vice presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them, respectively, by the Board of
Directors or the By-Laws.
Secretary
---------
Section 6. The secretary shall keep or cause to be kept at the head office
of the corporation or such other place as the Board of Directors may order, a
book of minutes of all proceedings of the shareholders, the Board of Directors
and committees of the Board, with the time and place of holding, whether regular
or special, and if special how authorized, the notice thereof given, the names
of those present at directors' and committee meetings, and the number of shares
present or represented at shareholders' meetings. The secretary shall keep or
cause to be kept at the head office a record of shareholders or a duplicate
record of shareholders showing the names of the shareholders and their
addresses, the number of shares and classes of shares held by each, the number
and date of certificates issued for the same and the number and date of
cancellation of every certificate surrendered for cancellation. The secretary
or an assistant secretary or, if they are absent or unable or refuse to act, any
other officer of the corporation, shall give or cause to be given notice of all
the meetings of the shareholders, the Board of Directors and committees of the
Board required by the By-Laws or by law to be given, and he shall keep the seal
of the corporation, if any, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by
the By-Laws.
Section 7. It shall be the duty of the assistant secretaries to assist the
secretary in the performance of his duties and generally to perform such other
duties as may be delegated to them by the Board of Directors.
Treasurer
---------
Section 8. The treasurer shall be the chief financial officer of the
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of account of the corporation. He shall
receive and deposit all moneys and other valuables belonging to the corporation
in the name and to the credit of the corporation and shall disburse the same
only in such manner as the Board of Directors or the appropriate officers of the
corporation may from time to time determine, shall render to the president and
the Board of Directors, whenever they request it, an account of all his
transactions as treasurer and of the financial condition of the corporation, and
shall perform such further duties as the Board of Directors may require.
<PAGE>
Section 9. It shall be the duty of the assistant treasurers to assist the
treasurer in the performance of his duties and generally to perform such other
duties as may be delegated to them by the Board of Directors.
ARTICLE VI
----------
Annual Report
-------------
Section 1. So long as the corporation shall have fewer than one hundred
shareholders of record (determined as provided in Section 605 of the General
Corporation Law of the State of California), the requirement of Section 1501(a)
of said law that an annual report be sent to the shareholders is expressly
waived.
ARTICLE VII
-----------
Amendments
----------
Section 1. New By-Laws may be adopted or these By-Laws may be amended or
repealed by the affirmative vote or written consent of a majority of the
outstanding shares entitled to vote, except as otherwise provided by law or by
the Articles of Incorporation or these By-Laws.
Section 2. Subject to the right of shareholders as provided in Section 1
of this Article to adopt, amend or repeal By-Laws, and except as otherwise
provided by law or by the Articles of incorporation, By-Laws, or other than a
by-law or amendment thereof changing the authorized maximum or minimum number of
directors, may be adopted, amended or repealed by the Board of Directors.
Section 3. Any amendment to these By-Laws shall become effective only when
approved by the Superintendent of Banks of the State of California and when a
copy thereof, certified by the secretary of the corporation, has been filed with
the Superintendent of Banks.
<PAGE>
Exhibit 6. Consent of the Trustee.
================================================================================
Chemical Trust Company of California hereby consents, in accordance with the
provisions of Section 321(b) of the Trust Indenture Act of 1939, that reports of
examinations by Federal, State, Territorial and District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
CHEMCIAL TRUST COMPANY OF CALIFORNIA
BY: s/James Nagy
----------------------------------
James Nagy
Assistant Vice President
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
================================================================================
<PAGE>
TRUST COMPANY
Consolidated Report of Condition of Chemical Trust Company of California
---------------------------------------------
(Legal Title)
Located at San Francisco San Francisco CA 94111
----------------------------------------------------------------------
(City) (County) (State) (Zip)
as of close of business on December 31, 1995 Bank No. 1476
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
DOLLAR AMOUNT
ASSETS IN THOUSANDS
<S> <C>
1. Cash and due from banks 16,578
2. U.S. Treasury securities 4,518
3. Obligations of other U.S. Government agencies and
corporations
4. Obligations of States and political subdivisions
5. Other securities (including $ corporate stock
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net)
7. Bank Premises, furniture and fixtures and other assets
representing bank premises (including $ -0- capital
leases) 154
8. Real estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse) (including
$________________ intangibles) 1,477
11. TOTAL ASSETS 22,727
-------
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness (including $___________ capital leases)
14. Other liabilities (complete on schedule on reverse 4,098
15. TOTAL LIABILITIES 4,098
=======
16. Capital notes and debentures
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding _________________) Amount $
18. Common stock--
(Number shares authorized 100 ) Amount $
(Number shares outstanding 100 ) Amount $ 10
19. Surplus Amount $ 9,990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 8,629
22. TOTAL SHAREHOLDERS EQUITY 18,629
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 22,727
--------
</TABLE>
<PAGE>
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise of fiduciary
powers (market value) 605
- --------------------------------------------------------------------------------
The undersigned, Francis J. Farrell, VP, Manager & CFO
-----------------------------------------
(Name and Title)
and C. Scott Boone, Senior Vice President
-----------------------------------------
(Name and Title)
of the above named trust company, each declares, for himself alone and not for
the other: I have a personal knowledge of the matters contained in this report
(including the reverse side hereof), and I believe that each statement in said
report is true. Each of the undersigned, for himself alone and not for the
other, certifies under penalty of perjury that the foregoing is true and
correct.
Executed on 1/10/96 , at San Francisco , California
------------------ --------------------
(Date) (City)
s/Francis J. Farrell s/C. Scott Boone
--------------------------- --------------------------
(Signature) (Signature)
SCHEDULE OF OTHER ASSETS
Accounts Receivable-Trade 802
Accounts Receivable-Chemical 7
Accrued Interest 116
Deferred Taxes 396
Other 156
Total (same as Item 10) 1,477
======
SCHEDULE OF OTHER LIABILITIES
Accrued Income Taxes 2,284
Accrued Expenses & A/P 187
Accrued Inter company Exp/Pay 220
Accrued Pension & Benefits 1,407
Total (same as Item 14) 4,098
=====
