As Filed With The Securities And Exchange Commission On
April 1, 1999, Registration No. 333- .
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE CLOROX COMPANY
(Exact name of registrant as specified in its charter)
Delaware 31-0595760
(State of incorporation) (I.R.S. Employer Identification Number)
1221 Broadway
Oakland, California 94612-1888
(510) 271-7000
(Address, Including Zip Code And Telephone Number, Including Area Code, Of
Registrant's Principal Executive Offices)
G. C. Sullivan
Chairman of the Board and Chief Executive Officer
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
(510) 271-7000
(Name, Address, Including Zip Code, And Telephone Number, Including Area
Code, Of Agent For Service)
Copies to:
Peter D. Bewley, Esq. John W. Campbell, III, Esq.
The Clorox Company Kristian E. Wiggert, Esq.
1221 Broadway S. David Goldenberg, Esq.
Oakland, California 94612-1888 Morrison & Foerster LLP
(510) 271-7000 425 Market Street
San Francisco, California 94105-2482
(415) 268-7000
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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.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box:
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
please check the following box: XXX
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering:
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering:
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box:
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of Each Class of Amount To Be Proposed Maximum Proposed Maximum Amount Of
Securities to be Registered Registered Offering Price Per Unit Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $750,000,000(1) 100% $750,000,000(2)(3) $208,500(3)
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Or, if any debt securities are issued at original issue discount,
a greater amount as may result in the initial offering prices for debt
securities aggregating $750,000,000. Any offering of debt securities
denominated in any foreign currencies or foreign currency units will
be treated as the equivalent in U.S. dollars based on the exchange
rate applicable to the purchase of those debt securities from the
Registrant.
(2) Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457(o) under the Securities Act of 1933.
(3) Of the $750,000,000 of debt securities registered hereby,
$200,000,000 aggregate principal amount of such securities was
registered pursuant to the Registrant's Registration Statement
on Form S-3, No. 33-40843, and are unissued as of the date hereof.
A registration fee of $50,000 was previously paid with respect to
such debt securities and, pursuant to Rule 429 under the Securities
Act, the registration fee payable hereunder is offset by such previously
paid amount.
Pursuant to Rule 429 under the Securities Act, the Prospectus filed as
part of this registration statement relates to the securities registered
hereby, including the remaining unsold $200,000,000 principal amount
of debt securities previously registered by the Registrant under
its Registration Statement on Form S-3, No. 33-40843.
------------------------------------------
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment that specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or
until the registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
NOT YET EFFECTIVE, DATED APRIL 1, 1999
$750,000,000
THE CLOROX COMPANY
DEBT SECURITIES
The Clorox Company may offer and sell from time to time debt securities
consisting of debentures, notes and/or other unsecured evidences of
indebtedness in one or more series at an aggregate initial offering
price not to exceed $750,000,000. We may offer these debt securities
in separate series in amounts, at prices and on terms determined at
the time of offering.
An accompanying prospectus supplement will show the principal amount,
maturity, interest rate or rates, whether the interest rate or rates
will be fixed or variable and/or any method of determining the
interest rate or rates, the initial public offering price, trading
symbol, markets and other terms of each series of debt securities.
We may sell debt securities to or through underwriters, dealers or
agents or directly to other purchasers. See "Plan of Distribution."
The names of any underwriters, dealers or agents and their compensation
will be stated in the applicable prospectus supplement.
This investment involves risks. See the "Risk Factors" section
beginning on page 2.
You should read this prospectus and any accompanying prospectus
supplement carefully before you invest.
Neither the SEC nor any state securities commission has approved or
disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary
is a criminal offense.
The information in this prospectus is not complete and may be changed.
Clorox may not sell these debt securities until the registration
statement filed with the SEC is effective. This prospectus is not
an offer to sell these debt securities and it is not soliciting an
offer to buy these debt securities in any state where the offer or
sale is not permitted.
The date of this Prospectus is , 1999.
----------------------
<PAGE>
You should rely only on the information provided in this prospectus
or explicitly made part of this document by reference and the
accompanying prospectus supplement. No person has been authorized
by us to provide you with any other information. Clorox is not
making an offer of any debt securities in any state where the offer
is unlawful. You should not assume that the information in this
prospectus and the accompanying prospectus supplement is correct
as of any date after the date of this prospectus and the
prospectus supplement.
THE CLOROX COMPANY
Clorox was organized as a Delaware corporation in 1986. We will
refer to The Clorox Company and its subsidiaries together in this
prospectus as Clorox. We build brand franchises for consumer
products sold primarily in grocery stores and other retail outlets
throughout the United States and in many parts of the world.
Clorox's line of domestic retail products includes many of the
country's best-known brands of laundry additives, home cleaning
products, automotive additive and appearance products, cat litters,
insecticides, charcoal briquettes, salad dressings, sauces, water
filtration systems, plastic wrap, bags and containers, trash bags
and home fireplace products. Internationally, Clorox markets laundry
additives, home cleaning products, insecticides, plastic wrap, bags
and containers, trash bags, and automotive additive and appearance
products, primarily in developing countries. Overall, Clorox products
are sold in more than 80 countries and are manufactured in more than
72 plants at locations in the United States and abroad.
We maintain our principal executive offices at 1221 Broadway, Oakland,
California 94612-1888. Our telephone number is (510) 271-2150.
RISK FACTORS
In addition to the other information included in this prospectus,
you should carefully consider the following risk factors in
determining whether or not to purchase the debt securities.
You should consider these matters in conjunction with the other
information included or explicitly made part of this document
by reference in this prospectus.
Changes in our credit rating or the credit markets could adversely
affect the price of the debt securities
The interest rate, selling price, initial offering discount or
any premium offered for the debt securities will be based on a
number of factors, including Clorox's rating with major credit
rating agencies, the prevailing interest rates being paid by
other companies similar to Clorox, and the overall condition of
the financial markets at the time of the initial distribution of
any series of debt securities. The condition of the credit
markets and prevailing interest rates have fluctuated in the past
and are likely to fluctuate in the future. Fluctuations in these
factors could have an adverse effect on the price of the debt
securities. In addition, credit rating agencies continually revise
their ratings for the companies that they follow. We cannot be
sure that credit rating agencies will maintain Clorox's rating at
any time after the issuance of any series of debt securities. A
negative change in Clorox's rating could have an adverse effect on
the price of the debt securities.
Available additional borrowing could increase default risks
Clorox is permitted to incur additional indebtedness, including
secured indebtedness, in addition to its other current indebtedness
and the debt securities described in this document. If we do incur
new indebtedness, the risk of default on the debt securities could
increase.
Your investment in the debt securities may be illiquid
Prior to the initial offering of any series of debt securities, there
will be no market for the debt securities and the underwriters
are under no obligation to make a market for the debt securities.
As a result of these facts, you may not be able to sell any debt
securities you purchase in the quantities and at the prices
found for similar debt securities with more liquid trading
markets.
Fluctuations in quarterly operating results could adversely
affect the price of the debt securities
We cannot be sure that Clorox's quarter-to-quarter operating
results will continue to improve, or that if any improvement is
shown, the degree of improvement will meet expectations of
investors or credit rating agencies. Failure to meet investor
or credit rating agency expectations can result in declines in
the price of the debt securities if such failure suggests that
it is less likely that we will be able to pay interest on the
debt securities or repay the principal balance of the debt securities.
Our international operations expose us to uncertain conditions in
overseas markets
Clorox believes that its international sales, which were 18% of
net sales in fiscal year 1998, are likely to increase as a
percentage of its total sales, because of both internal expansion
and the addition of First Brands Corporation's international
operations from Clorox's acquisition of First Brands in January
1999. Foreign operations create risks that can have a material
adverse effect on operations and our financial position, which
could increase the risk of default on the debt securities and
lead to decreases in the market price of the debt securities.
The risks created by having foreign operations include:
* economic or political instability in its overseas markets; and
* fluctuations in foreign currency exchange rates that may make
Clorox's products more expensive in its foreign markets or negatively
impact its sales or earnings.
All of these risks could have a significant impact on Clorox's
ability to sell its products on a timely and competitive basis
in foreign markets.
Failure to successfully make and integrate acquisitions could
adversely affect our financial condition
One of our strategies is to increase our revenues and the markets
we serve through the acquisition of other businesses in the
United States and internationally. If we are not able to identify,
acquire or profitably manage additional companies or operations
or successfully integrate recent or future acquisitions, including
First Brands Corporation, into our operations, the adverse effect
on our future growth and financial condition could cause market
price declines for the debt securities or adversely affect our
ability to pay interest or repay the principal balance of the
debt securities. There can be no assurance that companies or
operations acquired will be profitable at the time of their
acquisition or will achieve sales levels and profitability that
justify the investment made, including the investment in First
Brands Corporation.
Failure to make continuous and successful new product introductions
could result in declines in financial performance
In most categories in which Clorox competes, there are frequent
introductions of new products and line extensions. If we are not
able to identify emerging consumer and technological trends and to
maintain and improve the competitiveness of our products, we will
lose market position and there will be an adverse effect on our
financial performance. We cannot be sure that we will successfully
achieve those goals. Continued product development and marketing
efforts have all the risks inherent in the development of new
products and line extensions, including development delays, the
failure of new products and line extensions to achieve anticipated
levels of market acceptance, and the cost of failed product
introductions.
Failure to adequately address year 2000 compliance could disrupt
our operations
Many financial information and operations systems used today may be
unable to interpret dates after December 31, 1999, which could have
adverse consequences on operations and the integrity of information
processing. This potential problem is referred to as the "Year
2000" or "Y2K" issue.
If necessary modifications and conversions by Clorox, including
modifications and conversions for First Brands, are not made on a
timely basis, or if key third parties are not Y2K compliant, Y2K
problems could have a material adverse effect on Clorox's
operations. Clorox's most reasonably likely worst case scenario
is a regional utility failure that would interrupt manufacturing
operations and distribution centers in the affected region.
Government regulations could impose additional costs or materially
impact operations
The manufacture, packaging, storage, distribution and labeling
of Clorox's products and Clorox's business operations generally
all must comply with extensive federal, state, and foreign laws
and regulations. For example, in the United States, many of
Clorox's products are regulated by the Environmental Protection
Agency, the Food and Drug Administration, and the Consumer
Product Safety Commission. Most states have agencies that
regulate in parallel to these federal agencies. The failure
to comply with applicable laws and regulations in these or
other areas could subject Clorox to civil remedies, including
fines, injunctions, recalls or seizures, as well as potential
criminal sanctions, any of which could have a material adverse
effect on Clorox. Changes in applicable laws and regulations
in these or other areas, including taxes, could materially
impact Clorox's operations or could have an adverse effect on the
debt securities. Loss of or failure to obtain necessary permits
and registrations could delay or prevent Clorox from introducing
new products, building new facilities or acquiring new businesses
and could adversely affect operating results.
Environmental matters create potential liability risks
Clorox must comply with various environmental laws and regulations
in the jurisdictions in which it operates, including those relating
to air emissions, water discharges, the handling and disposal of
solid and hazardous wastes, and the remediation of contamination
associated with the use and disposal of hazardous substances. Clorox
has incurred, and will continue to incur, capital and operating
expenditures and other costs in complying with those laws and
regulations in the United States and internationally. Clorox is
currently involved in or has potential liability with respect to
the remediation of past contamination in the operation of some of
its presently and formerly owned and leased facilities. In
addition, some of Clorox's present and former facilities have
been or had been in operation for many years, and over that time,
some of these facilities may have used substances or generated
and disposed of wastes that are or may be considered hazardous.
It is possible that those sites, as well as disposal sites owned
by third parties to which Clorox has sent waste, may in the future
be identified and become the subject of remediation. It is
possible that Clorox could become subject to additional environmental
liabilities in the future that could result in a material adverse
effect on Clorox's results of operations or financial condition.
Failure to protect our intellectual property could reduce our
competitiveness
Clorox relies on trademark, trade secret, patent and copyright law
to protect its intellectual property. We cannot be sure that these
intellectual property rights can be successfully asserted in the
future or will not be invalidated, circumvented or challenged.
In addition, laws of some of the foreign countries in which
Clorox's products are or may be sold do not protect Clorox's
intellectual property rights to the same extent as the laws of
the United States. The failure of Clorox to protect its proprietary
information and any successful intellectual property challenges or
infringement proceedings against Clorox could make us less competitive
and have a material adverse effect on Clorox's business, operating
results and financial condition.
Forward-looking statements may prove inaccurate
The information in this prospectus and information we have explicitly
made part of this prospectus by reference contains forward-looking
statements within the meaning of Section 21E of the Securities
Exchange Act about Clorox. Although Clorox believes that, in making
these statements, its expectations are based on reasonable assumptions,
any forward-looking statement may be influenced by factors that
could cause actual outcomes and results to be materially different
from those projected. When used in this prospectus, the words
"anticipates," "believes," "expects," "intends," and similar
expressions as they relate to Clorox or management members are
intended to identify these forward-looking statements. These
forward-looking statements are uncertain. Important factors that
could cause actual results to differ materially from those in
forward-looking statements, some of which may be beyond the control
of Clorox, include:
* the impact of general economic conditions in the United States
and Canada and in other countries in which Clorox or its
affiliates currently do business;
* industry conditions, including competition and product and raw
material prices;
* fluctuations in exchange rates and currency values; capital
expenditure requirements;
* legislative or regulatory requirements, particularly concerning
environmental matters;
* interest rates;
* access to capital markets;
* the timing of and value received in connection with asset
divestitures; and
* obtaining required approvals of debtholders.
Our actual results, performance or achievement could differ materially
from those expressed in, or implied by, these forward-looking statements
and, therefore we cannot be sure that any of the events anticipated by
the forward-looking statements will occur or transpire, or, if any of
them do so, what impact they will have on our results of operations and
financial condition.
<PAGE>
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement, the net proceeds Clorox receives from the sale
of the debt securities will be used for general corporate
purposes. General corporate purposes may include refinancing
existing debt and funding future acquisitions, capital expenditures
and working capital requirements.
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Clorox's ratio of earnings to fixed
charges for the periods indicated:
Years Ended June 30,
Six Months Ended -------------------------------------------
December 31, 1998 1998 1997 1996 1995 1994
--------------------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings
to Fixed Charges. 5.9 6.1 6.9 8.4 8.9 9.3
</TABLE>
For purposes of computing the above ratios, earnings consist of income
from continuing operations before income taxes, extraordinary items
and cumulative effect of accounting changes, plus amortization of
capitalized interest, minority interest in net income of subsidiaries,
some other adjustments, and fixed charges; and fixed charges include
interest expense, amortization of debt discount and expense, the portion
of rents representative of an interest factor and capitalized interest.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes the material general terms and provisions
of the debt securities. When we offer a particular series of debt
securities, we will describe the specific terms of the series in a
supplement to this prospectus. We will also indicate in the supplement
whether the general terms and provisions described in this prospectus
apply to a particular series of debt securities.
We may offer under this prospectus up to $750,000,000 aggregate
principal amount of debt securities, or if debt securities are
issued at a discount, or in a foreign currency or composite
currency, a principal amount as may be sold for an initial
public offering price of up to $750,000,000. Unless otherwise
specified in the applicable prospectus supplement, the debt
securities will represent our direct, unsecured obligations and
will rank equally with all of our other unsecured and unsubordinated
indebtedness.
The debt securities we are offering in this prospectus will be
issued under an indenture between us and Bank of New York, as
trustee. We have summarized select portions of the indenture
below. The summary is not complete. We have filed a copy of the
indenture as an exhibit to the registration statement and you should
read the indenture for provisions that may be important to you.
In the summary below, we have included references to the section
numbers of the indenture so that you can easily locate these
provisions. Capitalized terms used in the summary below have the
meanings specified in the indenture.
General terms
The terms of each series of debt securities will be established by
or through a resolution of a Committee of our Board of Directors
and shown or determined in the manner provided in an officers'
certificate or by a supplemental indenture. (Section 2.2) The
particular terms of each series of debt securities will be described
in a prospectus supplement relating to that series.
We can issue an unlimited amount of debt securities under the indenture
that may be in one or more series with the same or various maturities
up to $750,000,000 aggregate principal amount of debt securities,
or if debt securities are issued at a discount, or in a foreign
currency or composite currency, a principal amount as may be sold
for an initial public offering price of up to $750,000,000. In
addition, we may sell these debt securities at a price equal to their
face value, or at prices above or below this amount up to the
$750,000,000 limitation above. We will state in a prospectus
supplement relating to any series of debt securities being offered,
the initial offering price, the aggregate principal amount and
the following terms of the debt securities:
* the title of the debt securities;
* the price or prices at which we will sell the debt securities,
expressed as a percentage of the aggregate principal amount;
* any limit on the aggregate principal amount of the debt securities;
* the date or dates on which we will pay the principal on the
debt securities;
* the interest rate or rates per annum;
* whether the interest rate or rates will be fixed or variable;
* any special method used to determine the interest rate or rates,
including any commodity, commodity index, stock exchange index or
financial index that we will use;
* the date or dates from which interest will accrue;
* the date or dates on which interest will commence and be payable;
* any regular record date for the interest payable on any interest
payment date;
* the place or places where principal of, interest and any additional
redemption value for debt securities originally offered at a discount
to their face value (the premium) on the debt securities will be payable;
* the terms and conditions upon which we may redeem the debt
securities;
* any obligation we have to redeem or purchase the debt securities
under any sinking fund or analogous provisions or at the option of a
holder of debt securities;
* the dates on which and the price or prices at which we will repurchase
the debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations;
* the rights, if any, that we have to redeem and pay the holders for
all or a portion of the debt securities before the stated maturity,
and their related terms;
* the denominations in which the debt securities will be issued, if
other than denominations of $1,000 or any integral multiple of $1,000;
* whether the debt securities will be issued in the form of
certificated debt securities or global debt securities;
* the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
* the currency of denomination of the debt securities;
* the designation of the currency, currencies or currency units in
which payment of principal of, premium and interest on the debt
securities will be made;
* if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are denominated,
the manner in which the exchange rate with respect to these payments
will be determined;
* the manner in which the amounts of payment of principal of,
premium or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
* any provisions relating to any security provided for the debt
securities;
* any addition to or change in the Events of Default described in
this prospectus or in the indenture with respect to the debt
securities and any change in the acceleration provisions described
in this prospectus or in the indenture with respect to the debt
securities;
* any addition to or change in the covenants described in this
prospectus or in the indenture with respect to the debt securities;
* any other terms of the debt securities, which may modify or delete
any provision of the indenture as it applies to that series; and
* any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
(Section 2.2)
We may issue debt securities that provide for an amount less than
their stated principal amount to be due and payable upon declaration
of acceleration of their maturity under the terms of the indenture.
We will provide you with information on the federal income tax
considerations and other special considerations applicable to
any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities
in a foreign currency or currencies or a foreign currency unit or
units, or if the principal of and any premium and interest on any
series of debt securities is payable in a foreign currency or
currencies or a foreign currency unit or units, we will provide
you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of debt securities and the foreign currency or
currencies or foreign currency unit or units in the applicable
prospectus supplement.
Payment of interest and exchange
We will pay interest in the amounts and at the times described in a
particular series of debt securities. If we default on any interest
payment, we will pay the defaulted interest plus interest on the
defaulted interest on a subsequent special record date, and will
notify you in advance of this date. (Section 2.13) Each debt
security will be represented by either one or more global securities
registered in the name of The Depository Trust Company, as Depositary,
or a nominee of the Depositary, which we will refer to in this
prospectus as a "book-entry debt security", or a certificate issued
in definitive registered form, which we will refer to as a
"certificated debt security"). We will state in the applicable
prospectus supplement whether a debt security is a book-entry
debt security or a certificated debt security. Except as shown
under "Global debt securities and book-entry system" below, book-
entry debt securities will not be issuable in certificated form.
Certificated debt securities. You may transfer or exchange
certificated debt securities at the trustee's office or paying
agencies according to the terms of the indenture. You will not
need to pay a service charge to transfer or exchange certificated
debt securities, but we may require payment of a sum sufficient
to cover any tax or other governmental charge payable in
connection with a transfer or exchange.
You may transfer certificated debt securities and the right to
receive the principal of, premium and interest on them only by
surrendering the old certificate representing those certificated
debt securities and either reissuance by us or the trustee of the
old certificate to the new holder or the issuance by us or the
trustee of a new certificate to the new holder.
Global debt securities and book-entry system. Each global debt
security representing book-entry debt securities will be deposited
with, or on behalf of, the Depositary, and registered in the name
of the Depositary or a nominee of the Depositary.
The Depositary has indicated it intends to follow the following
procedures with respect to book-entry debt securities:
Participants are persons that have accounts with the Depositary for
the related global debt security. Ownership of beneficial interests
in book-entry debt securities will be limited to participants or
persons that may hold interests through participants. Upon the
issuance of a global debt security, the Depositary will credit, on
its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the book-entry
debt securities represented by this global debt security beneficially
owned by the participants. The accounts to be credited will be
designated by any dealers, underwriters or agents participating in
the distribution of the book-entry debt securities. Ownership of
book-entry debt securities will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the Depositary for the related global debt security,
with respect to interests of participants, and on the records of
participants with respect to interests of persons holding through
participants. The laws of some states may require that some
purchasers of debt securities take physical delivery of their debt
securities in definitive form. These laws may impair the ability
to own, transfer or pledge beneficial interests in book-entry
debt securities.
So long as the Depositary for a global debt security, or its nominee,
is the registered owner of that global debt security, the
Depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the book-entry debt securities
represented by that global debt security for all purposes under
the indenture. Except as described below, beneficial owners of
book-entry debt securities will not be entitled to have debt
securities registered in their names, will not receive or be
entitled to receive physical delivery of a certificate in definitive
form representing debt securities and will not be considered the
owners or holders of those debt securities under the indenture.
Therefore, each person beneficially owning book-entry debt securities
must rely on the procedures of the Depositary for the related global
debt security and, if that person is not a participant, on the
procedures of the participant through which that person owns its
interest, to exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice, the
Depositary will authorize the persons on whose behalf it holds a
global debt security to exercise the rights of holders of debt
securities, and the indenture provides that we, the trustee and
our respective agents will treat as the holder of a debt security
the persons specified in a written statement of the Depositary with
respect to that global debt security for purposes of obtaining any
consents or directions required to be given by holders of the debt
securities under the indenture. (Section 2.14.6)
We will make payments of principal of, and premium and interest on
book-entry debt securities to the Depositary or its nominee, as the
case may be, as the registered holder of the related global debt
security. (Section 2.14.5) Clorox, the trustee and any other
agent of ours or agent of the trustee will not have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining, supervising
or reviewing any records relating to these beneficial ownership
interests.
We expect that the Depositary, upon receipt of any payment of
principal of, premium or interest on a global debt security, will
immediately credit participants' accounts with payments in amounts
proportionate to the respective amounts of book-entry debt
securities held by each participant as shown on the records of the
Depositary. We also expect that payments by participants to owners
of beneficial interests in book-entry debt securities held through
those participants will be governed by standing customer instructions
and customary practices, as is now the case with the debt securities
held for the accounts of customers in bearer form or registered in
"street name", and will be the responsibility of those participants.
We will issue certificated debt securities in exchange for each
global debt security if the Depositary is at any time unwilling
or unable to continue as Depositary or ceases to be a clearing
agency registered under the Securities Exchange Act, and a successor
Depositary registered as a clearing agency under the Securities
Exchange Act is not appointed by us within 90 days. In addition,
we may at any time and in our sole discretion determine not to have
any of the book-entry debt securities of any series represented by
one or more global debt securities and, in that event, we will issue
certificated debt securities in exchange for the global debt
securities of that series. Global debt securities will also be
exchangeable by the holders for certificated debt securities if an
event of default with respect to the book-entry debt securities
represented by those global debt securities has occurred and is
continuing. Any certificated debt securities issued in exchange
for a global debt security will be registered in the name or names
designated by the Depositary to the trustee. We expect that these
instructions will be based upon directions received by the
Depositary from participants with respect to ownership of book-entry
debt securities relating to the global debt security.
We have obtained the foregoing information in this section
concerning the Depositary and the Depositary's book-entry system
from sources we believe to be reliable, but we take no
responsibility for the accuracy of this information.
No protection if a change of control occurs
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any
provisions that may afford holders of the debt securities
protection if there is a change in control or if there is
a major stock repurchase using Clorox debt, whether or
not it results in a change in control.
Covenants
Unless we otherwise state in the applicable prospectus
supplement and in a supplement to the indenture, a board
resolution or an officers' certificate delivered under the
indenture, the debt securities will not contain any restrictive
covenants, including covenants restricting us or any of our
subsidiaries from incurring, issuing, assuming or guarantying
any indebtedness secured by a lien upon any of our or our
subsidiaries' property or shares of our or any of our subsidiaries'
capital stock, or restricting us or any of our subsidiaries from
entering into any sale and leaseback transactions.
We agree to pay the principal and interest to the holders of the
debt securities according to the debt securities and the
indenture. (Section 4.1) We will provide the trustee with
copies of any reports we file with the SEC, as well as an annual
certificate stating that to our knowledge we have complied with
the terms and covenants of the indenture. (Section 4.2, 4.3)
We agree to maintain our corporate existence in its current form
and to pay all material taxes. (Section 4.5, 4.6)
Consolidation, merger and sale of assets
We may not consolidate with or merge into, or convey, transfer
or lease all or substantially all of our properties and assets
to, any person and we may not permit any person to merge into,
or convey, transfer or lease its properties and assets substantially
as an entirety to, us, unless:
* the person is a corporation, partnership, trust or other
entity organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes our obligations
on the debt securities and under the indenture;
* immediately after giving effect to the transaction, no event of
default, and no event that, after notice or lapse of time, or
both, would become an event of default, shall have occurred and
be continuing under the indenture; and
* we provide an officer's certificate and opinion of counsel to
the foregoing effect. (Section 5.1)
Events of default
"Event of default" means, with respect to any series of debt
securities, any of the following:
* default in the payment of any interest upon any debt security of
that series when it becomes due and payable, and continuance of
that default for a period of 30 days, unless the entire payment
is deposited by us with the trustee or with a paying agent
before the expiration of the 30-day period;
* default in the payment of principal of or premium on any debt
security of that series when due and payable;
* default in the deposit of any sinking fund payment, when and as
due in respect of any debt security of that series;
* default in the performance or breach of any other covenant or
warranty by us in the indenture applicable to that series, which
default continues uncured for a period of 60 days after we
receive written notice from the trustee or we and the trustee
receive written notice from the holders of at least 25% in
principal amount of the outstanding debt securities of that
series as provided in the indenture;
* the occurrence of an event of bankruptcy, insolvency or
reorganization, as defined in the indenture; and
* any other event of default provided with respect to debt
securities of that series that is described in the applicable
prospectus supplement accompanying this prospectus.
Except as to events of bankruptcy, insolvency or reorganization
as defined in the indenture, no event of default with respect
to a particular series of debt securities necessarily constitutes
an event of default with respect to any other series of debt
securities. (Section 6.1) The occurrence of an event of default
may constitute an event of default under our bank credit
agreements in existence from time to time and under some of
our guaranties of subsidiary indebtedness. In addition, the
occurrence of events of default or an acceleration under the
indenture may constitute an event of default under other
present or future agreements relating to our other indebtedness
outstanding from time to time.
If an event of default with respect to debt securities of any series
at the time outstanding occurs and is continuing, then the
trustee or the holders of not less than 25% in principal amount
of the outstanding debt securities of that series may, by written
notice to us, declare to be due and payable within 5 business
days the principal or, if the debt securities of that series
are discount debt securities, that portion of the principal
amount as may be specified in the terms of that series, and
premium of all debt securities of that series. If the notice is
given by the holders, the written notice shall also be to the
trustee. In the case of an event of default resulting from
court orders under the bankruptcy law for relief in an involuntary
case, an appointment of a custodian or an order for Clorox's
liquidation, or future events of default that may be specified
in the description of a future series or by board resolution, the
principal or specified amount and premium of all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act by the trustee or any holder of
outstanding debt securities.
At any time after a declaration of acceleration with respect to debt
securities of any series has been made, but before the trustee has
obtained a judgment or decree for payment of the money due, the
holders of greater than 25% in principal amount of the outstanding
debt securities of that series or the trustee may rescind and
annul the acceleration if:
* all events of default, other than the non-payment of accelerated
principal and premium with respect to debt securities of that
series, have been cured or waived as provided in the indenture; and
* we have cured all events of default and paid or deposited with
the trustee a sum sufficient to pay the principal, overdue
interest and interest on the overdue interest to the extent
permitted that has become due other than by acceleration and all
sums advanced or paid by the trustee and sums sufficient to
reasonably compensate the trustee and any counsel. (Section 6.2)
For information as to waiver of defaults see the discussion under
"Modification and waiver; rights of trustee" below. We refer you
to the prospectus supplement relating to any series of debt
securities that are discount debt securities for the particular
provisions relating to acceleration of a portion of the principal
amount of those discount debt securities upon the occurrence of an
event of default and the continuation of an event of default.
The indenture provides that the trustee may demand that we cure
any default as to payments of any interest, principal or sinking
fund payment that is not cured within 30 days, and in its
discretion may institute judicial proceedings for collection.
(Section 6.3) The indenture provides that the trustee will be
under no obligation to exercise any of its rights or powers
under the indenture at the request of any holder of outstanding
debt securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. (Section 7.1(e))
The holders of a majority in principal amount of the outstanding
debt securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debt securities of
that series, except where those directions could involve the
trustee in personal liability. (Section 6.12)
No holder of any debt security of any series will have any right
to institute any proceeding, judicial or otherwise, with respect
to the indenture or for the appointment of a receiver or trustee,
or for any remedy under the indenture, unless:
* that holder has previously given to the trustee written notice
of a continuing event of default with respect to debt securities
of that series; and
* the holders of at least a majority in principal amount of
the outstanding debt securities of that series have made written
request, and offered reasonable indemnity, to the trustee to
institute a proceeding as trustee, and the trustee shall not
have received from the holders of a majority in principal amount
of the outstanding debt securities of that series a direction
inconsistent with that request and has failed to institute the
proceeding within 60 days. (Section 6.7)
Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment. (Section 6.8)
The indenture requires us, within 90 days after the end of our
fiscal year, to furnish to the trustee a statement as to compliance
with the indenture. (Section 4.3) The trustee is required to mail
to the SEC and to all holders of debt securities a brief report, no
later than June 29 of each year, as required by the Trust Indenture
Act. The indenture provides that the trustee may withhold notice
to the holders of debt securities of any series of any default or
event or default, except in the case of defaults in payment of
principal or interest on any debt securities of that series, if it
in good faith determines that withholding notice is in the interest
of the holders of those debt securities. (Section 7.5)
Modification and waiver; rights of trustee
We and the trustee may modify and amend the indenture with the
consent of the holders of at least a majority in principal amount
of the outstanding debt securities of each series affected by the
modifications or amendments. We and the trustee may not make any
modification or amendment without the consent of the holder of each
affected debt security evidencing then outstanding debt if that
amendment will:
* change the amount of debt securities whose holders must consent
to an amendment or waiver;
* reduce the rate of or extend the time for payment of interest,
including default interest, on any debt security;
* reduce the principal of or premium on or change the fixed
maturity of any debt security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous
obligation with respect to any series of debt securities;
* reduce the principal amount of discount debt securities payable
upon acceleration of maturity;
* waive a default in the payment of the principal of, premium
or interest on any debt security, except a rescission of acceleration
of the debt securities of any series by the holders of at least a
majority in aggregate principal amount of the then outstanding
debt securities of that series and a waiver of the payment default
that resulted from the acceleration;
* make the principal of or premium or interest on any debt security
payable in currency other than that stated in the debt security;
* make any change to provisions of the indenture relating to, among
other things, the right of holders of debt securities to receive
payment of the principal of, premium and interest on those debt
securities and to institute suit for the enforcement of any payment
and to waivers or amendments; or
* waive a redemption payment with respect to any debt security or
change any of the provisions with respect to the redemption of any
debt securities. (Section 9.3)
Except for changes to cure ambiguities or inconsistencies or other
changes that do not adversely affect the rights of securityholders,
and except for the prohibited modifications immediately above, the
holders of at least a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all debt
securities of that series waive our compliance with provisions of the
indenture. (Section 9.2) The holders of a majority in principal
amount of the outstanding debt securities of any series may on
behalf of the holders of all the debt securities of that series
waive any past default under the indenture with respect to that
series and its consequences, except a default in the payment of
the principal of, premium or any interest on any debt security of
that series; however, the holders of a majority in principal amount
of the outstanding debt securities of any series or the trustee
may waive any default under the indenture and rescind an acceleration
and its consequences, including any related payment default that
resulted from the acceleration. (Section 6.13)
The trustee may rely on any document believed by it to be genuine
and need not investigate any fact or matter stated in the
document. (Section 7.2) The trustee may act through agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care. (Section 7.2) The trustee is not
responsible for any act or omission of the Depositary. (Section 7.2)
The trustee may become the owner or pledgee of debt securities,
unless not permitted by the Trust Indenture Act. (Section 7.3)
Defeasance of debt securities and covenants
Legal defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities,
we may be discharged from any and all obligations in respect of the
debt securities of any series. However, we may not be discharged
from our obligations to register the transfer or exchange of debt
securities of any series, to replace stolen, lost or mutilated debt
securities of any series, and to maintain paying agencies and other
provisions relating to the treatment of funds held by paying agents.
We will be so discharged upon the deposit with the trustee, in trust,
of money and/or U.S. government obligations or, in the case of debt
securities denominated in a single currency other than U.S. dollars,
foreign government obligations, that, through the payment of interest
and principal according to their terms, will provide money in an
amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay and discharge each installment
of principal, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the stated
maturity of those payments according to the terms of the indenture
and those debt securities.
This discharge may occur only if, among other things:
* there is no event of default with respect to the debt securities;
* the deposit will not cause us to breach any agreement to which
we are a party; and
* we have delivered to the trustee an officers' certificate and
an opinion of counsel stating that we have received from, or there
has been published by, the United States Internal Revenue Service
a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income
tax law, in either case which states that holders of the debt
securities of that series will not recognize income, gain or loss
for United States federal income tax purposes as a result of the
deposit, defeasance and discharge and will need to pay United States
federal income tax on the same amount and in the same manner and at
the same times as would have been the case if the deposit, defeasance
and discharge had not occurred. (Section 8.3)
Defeasance of covenants. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities,
upon compliance with conditions stated in the indenture:
* we may omit to comply with the restrictive covenants contained in
Sections 4.2 through 4.7 and Section 5.1 of the indenture, as well
as any additional covenants contained in a supplement to the
indenture, a board resolution or an officers' certificate delivered
under the indenture; and
* events of default under Section 6.1(e) of the indenture will not
constitute a default or an event of default with respect to the debt
securities of that series.
The conditions for defeasance conditions include:
* depositing with the trustee money and/or U.S. government obligations
or, in the case of debt securities denominated in a single currency
other than U.S. dollars, foreign government obligations, that,
through the payment of interest and principal according to their terms,
will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay
principal, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the
stated maturity of those payments according to the terms of the
indenture and those debt securities; and
* delivering to the trustee an opinion of counsel stating that
the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant
defeasance and will need to pay United States federal income
tax on the same amount and in the same manner and at the same
times as would have been the case if the deposit and related
covenant defeasance had not occurred. (Section 8.4)
Covenant defeasance and events of default. If we exercise our
option not to comply with our covenants of the indenture with
respect to any series of debt securities and the debt securities
of that series are declared due and payable because of the
occurrence of any event of default, the amount of money and/or
U.S. government obligations or foreign government obligations on
deposit with the trustee will be sufficient to pay amounts due
on the debt securities of that series at the time of their stated
maturity but may not be sufficient to pay amounts due on the debt
securities of that series at the time of the acceleration resulting
from the event of default. However, we will remain liable for
those payments.
"Foreign government obligations" means, with respect to debt
securities of any series that are denominated in a currency other
than U.S. dollars:
* direct obligations of the government that issued or caused to be
issued the currency for the payment of which obligations its full
faith and credit is pledged, which are not callable or redeemable
at the option of the issuer; or
* obligations of a person controlled or supervised by or acting
as an agency or instrumentality of that government the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by that government, which are not callable or
redeemable at the option of the issuer.
Governing law
The indenture and the debt securities will be governed by, and
construed according to, the internal laws of the State of
New York. (Section 10.10)
PLAN OF DISTRIBUTION
We may sell debt securities through underwriters, dealers or
agents or directly to purchasers. The applicable prospectus
supplement will show the terms of the offering of any debt
securities we offer.
We may distribute debt securities from time to time in one or
more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at
prices related to those prevailing market prices or at negotiated
prices. Underwriters may sell debt securities to or through
dealers.
If we employ underwriters in the sale of debt securities, we will
execute an underwriting agreement with those underwriters. The
underwriting agreement will provide that the obligations of the
underwriters depend upon conditions precedent and that the
underwriters will be obligated to purchase all the debt securities
then being offered if any are purchased. In connection with the
sale of debt securities, underwriters may be deemed to have
received compensation from us in the form of underwriting discounts
or commissions and may also receive commissions from the purchasers
for whom they may act as agent. Underwriters may sell debt
securities to or through dealers. Those 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 initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time. If we employ underwriters in the sale of any debt
securities, the applicable prospectus supplement will contain a
statement regarding the intention, if any, of the underwriters to
make a market in the debt securities we sell.
If we use a dealer directly, we will sell the debt securities to
the dealer, as principal. The dealer may then resell the debt
securities to the public at varying prices to be determined by
the dealer at the time of resale.
Debt securities may also be offered and sold through agents
designated by us from time to time. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a
reasonable efforts basis for the period of its appointment.
Underwriters, dealers or agents participating in the distribution
of debt securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit
realized by them on resale of the debt securities may be deemed
to be underwriting discounts and commissions under the
Securities Act.
Under agreements that may be entered into by us, underwriters,
dealers and agents who participate in the distribution of debt
securities may be entitled to be indemnified by us against some
types of liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in
transactions with, or perform services for, us and our
subsidiaries in the ordinary course of business and receive
compensation for these transactions and services.
We may solicit directly offers to purchase debt securities.
Except as stated in the applicable prospectus supplement, none
of our directors, officers, or employees will solicit or receive
a commission in connection with direct sales of the debt
securities by us. Those persons may respond to inquiries by
potential purchasers and perform ministerial and clerical work
in connection with direct sales.
We may authorize underwriters or other persons acting as our
agents to solicit offers by institutions to purchase debt
securities from us under contracts providing for payment and
delivery on a future date. Institutions with which these
contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions
we may approve. The obligations of any purchaser under any of
those contracts will depend upon the condition that the purchase
of the debt securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the
purchaser is subject. The underwriters and other agents will
not have any responsibility in respect of the validity or
performance of those contracts.
Each series of debt securities will be a new issue of securities
with no established trading market. Unless otherwise specified
in a prospectus supplement relating to a series of debt
securities, the debt securities will not be listed on any
securities exchange. Any underwriters to whom debt securities
are sold by us for public offering and sale may make a market
in those debt securities, but those underwriters will not be
obligated to do so and may discontinue any market making at
any time without notice. There is no guarantee that any
underwriter will make a market in the debt securities of any
series or as to the existence or liquidity of a trading market
for the debt securities of any series.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in an accompanying prospectus
supplement relating to a series of debt securities, the
validity of the debt securities will be passed upon for us
by Peter D. Bewley, our Senior Vice President - General Counsel
and Secretary, and for any underwriters or agents by Latham &
Watkins, 505 Montgomery Street, Suite 1900, San Francisco,
California 94111.
EXPERTS
The consolidated financial statements of Clorox incorporated in
this prospectus by reference from Clorox's Annual Report on
Form 10-K for the fiscal year ended June 30, 1998 have been
audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports which are incorporated by reference
herein, and have been so incorporated in reliance upon the
reports of such firm, given upon their authority as experts in
auditing and accounting.
The consolidated financial statements and schedule of First
Brands Corporation as of June 30, 1998 and 1997, and for each
of the years in the three-year period ended June 30, 1998, have
been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting
and auditing. With respect to the unaudited interim financial
information for the periods ended September 30, 1998 and 1997,
incorporated by reference herein, the independent certified public
accountants have reported that they applied limited procedures
in accordance with professional standards for a review of such
information. However, their separate report included in First
Brands Corporation's quarterly report on Form 10-Q for the
quarter ended September 30, 1998 and 1997, and incorporated by
reference herein, states that they did not audit and they do not
express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such
information should be restricted in light of the limited nature
of the review procedures applied. The accountants are not
subject to the liability provisions of section 11 of the Securities
Act of 1933 for their report on the unaudited interim financial
information because that report is not a "report" or a "part
of the registration statement prepared or certified by the
accountants" within the meaning of sections 7 and 11 of the
Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
Clorox files annual reports on Form 10-K, quarterly reports on
Form 10-Q, current reports on Form 8-K, proxy statements and
other information with the SEC. You may read and copy any
materials filed by us with the SEC to meet our requirements
under the Securities Exchange Act of 1934 at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information regarding the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330
(1-800-732-0330). The SEC also maintains an Internet site.
Our filings with the SEC are available at the following
Internet address of the SEC: http://www.sec.gov.
Clorox has filed with the SEC a registration statement (of
which this prospectus is a part) on Form S-3 relating to the
debt securities under the Securities Act of 1933. This
prospectus does not contain all of the information shown in
the registration statement. For additional information, you
should refer to the registration statement, which you may
inspect at the SEC's Public Reference Room or at its Internet
site.
The SEC allows us to "incorporate by reference" into this
prospectus information included in documents Clorox files with
it to meet our requirements under the Securities Exchange Act.
The information incorporated by reference is considered a part
of this prospectus, which means we can disclose important
information to you by referring you to those documents.
Information filed with the SEC in the future will update and
supersede prior information. Any information modified or
superseded by information in a document filed by Clorox with
the SEC in the future shall not be a part of this prospectus.
We are incorporating by reference the documents listed below
and all future documents filed by Clorox with the SEC (File
No. 1-07151) under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act until our offering of the debt
ecurities is completed:
(1) Our Annual Report on Form 10-K for the year ended
June 30, 1998.
(2) Our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1998 and December 31, 1998.
You may request a copy of these filings, at no cost to you, by
writing to us at the following address or calling us at the
telephone number below:
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
Tel: (510) 271-2150
Attention: Director of Investor Relations
Please note that our website is: http://www.clorox.com
No person is authorized to give any information or to make any
representations other than those contained in this prospectus,
including any prospectus supplement in connection with the offer
of the debt securities, and, if given or made, the information
or representations must not be relied upon as having been
authorized. This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy these debt securities
in any circumstance in which the offer or solicitation is
unlawful. Neither the delivery of this prospectus nor any sale
made hereunder shall, under any circumstances, create any
implication that there has been no change in our affairs since
the date of this prospectus or that the information contained
or explicitly made part of this prospectus by reference is
correct as of any time subsequent to the date of this prospectus.
<PAGE>
THE CLOROX COMPANY
-----------------
PROSPECTUS
-----------------
Debt Securities
, 1999
---------
Table of Contents
Page
Risk Factors 2
Use of Proceeds 6
Description of debt securities 6
General terms 6
Payment of interest and exchange 8
No protection in the event of a change of control occurs 10
Covenants 10
Consolidation, Merger and Sale of Assets 10
Events of Default 10
Modification and waiver; rights of trustee 12
Defeasance of debt securities and covenants 13
Governing Law 14
Plan of Distribution 14
Validity of debt securities 16
Experts 16
Where You Can Find More Information 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following list sets forth the expenses other than underwriting
discounts and commissions expected to be incurred in connection
with the issuance and distribution of the debt securities being
registered by this registration statement. All amounts are
estimated except the SEC registration fee.
SEC Registration Fee $208,500
Printing and Engraving Costs 50,000*
Accounting Fees and Expenses 10,000*
Trustee Fees and Expenses 10,000*
Legal Fees and Expenses 30,000*
Rating Agencies' Fees 300,000*
Blue Sky Fees and Expenses 10,000*
Miscellaneous 11,500*
------------------------
Total $630,000*
========================
*Estimated
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides in
relevant part that "a corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the corporation), by reason of the fact that he
is or was a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful." With respect to derivative
actions, Section 145(b) of the Delaware General Corporation Law
provides in relevant part that "[a] corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor. . . .
[by reason of his service in one of the capacities specified in the
preceding sentence] against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation and except that
no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper."
Clorox's Restated Certificate of Incorporation provides that Clorox
is required to indemnify to the full extent permitted by the
Delaware General Corporation Law any person made, or threatened
to be made, a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of
the fact that the person, or the testator or intestate of the
person, is or was a director or officer of Clorox, or served any
business as a director or officer at the request of The Clorox
Company. Expenses incurred by a director of Clorox in defending
a civil or criminal action, suit or proceeding by reason of the
fact that the person was a director of Clorox (and not in any
other capacity, including if the person was serving at Clorox's
request as a director or officer of another enterprise or
corporation) will be paid by Clorox in advance of the final
disposition of the action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director to repay the
amount if it shall ultimately be determined that the person is
not entitled to be indemnified by Clorox as authorized by
relevant sections of the Delaware General Corporation Law.
Clorox will indemnify officers or directors in connection with
a proceeding initiated by them only if the proceeding was
authorized by Clorox's Board of Directors. Any person who is
not paid based on the foregoing indemnification provisions 90
days after submitting a written claim to Clorox may sue to
recover the unpaid amounts and, if successful, will be entitled
to be paid the expense of prosecuting the claim (except for any
of the claims as Clorox is not permitted by law to indemnify,
although the burden of proving the defense will be on Clorox).
Clorox's Restated Certificate of Incorporation also provides
that no director will be liable to Clorox for a breach of
fiduciary duty, except (1) for any breach of the director's
duty of loyalty to Clorox or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (3) under
Section 174 of the Delaware General Corporation Law, or (4)
for any transaction from which the director derived an
improper personal benefit. Clorox may also maintain insurance
at its expense, to protect itself and any director or officer
of Clorox or of another corporation or other enterprise
against any expense, liability or loss, whether or not Clorox
would have the power to indemnify the person against the
expense, liability or loss under the Delaware General
Corporation Law.
Clorox has purchased and maintains insurance on behalf of any
person who is or was a director or officer against loss a rising
from any claim asserted against him or her and incurred in his
or her capacity. Some exclusions apply.
See also the undertakings set out in response to Item 17
herein.
<PAGE>
Item 16. Exhibits.
Exhibit Exhibit
Item Number Description
- -------- ---------- --------------------------------------------
1 1.1* Form of Underwriting Agreement.
4 4.1(A) Restated Certificate of Incorporation (filed
as Exhibit 4.1 to Registration Statement on
Form S-8 No. 333-44678 dated January 22,
1998, incorporated herein by this reference).
4.1(B) Bylaws (restated) of Clorox (filed as Exhibit 3(ii)
to the Annual Report on Form 10-K for the year
ended June 30, 1998, incorporated herein by
reference).
4.2 Conformed copy of Indenture, dated as of
March 15, 1999, between Clorox and Bank of
New York as Trustee.
5 5.1 Opinion of Peter D. Bewley, Esq., Senior Vice
President - General Counsel and Secretary of Clorox,
as to the validity of the debt securities being
offered.
12 12.1 Computation of Ratios of Earnings to Fixed
Charges.
23 23.1 The consent of Deloitte & Touche LLP,
independent public accountants.
23.2 The consent of KPMG LLP, independent public
accountants
23.3 The consent of Peter D. Bewley, Esq., Senior
Vice President - General Counsel and Secretary
of Clorox, is included in his opinion filed as
Exhibit 5.1 to this Registration Statement.
24 24.1 Power of Attorney (See Page II-4 of this
registration statement).
25 25.1 Statement of Eligibility of The Bank of
New York on Form T-1.
*To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
Item 17. Undertakings.
A. Clorox hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 of this registration
statement, which, individually or in the aggregate, represent
a fundamental change in the information shown in this registration
statement. Notwithstanding the above, any increase or decrease
in the volume of debt securities offered (below the total registered
dollar value of debt securities) and any change from the low or
high end of the estimated maximum offering range may be reflected
in the form of Prospectus filed with the SEC if, in the aggregate,
the change in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price shown in the
"Calculation of Registration Fee" table shown 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 the information in this registration
statement, including any addition or deletion of a managing underwriter;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by Clorox
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment shall be deemed
to be a new registration statement relating to the debt securities
offered therein, and the offering of the debt securities at that
time shall be deemed to be the initial bona fide offering of those
debt securities.
(3) To remove from registration by means of a post-effective
amendment any of the debt securities being registered which
remain unsold at the termination of the offering.
B. Clorox hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Clorox's annual
report and, where applicable, each filing of an employee benefit
plan's annual report that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the debt securities offered herein, and
the offering of the debt securities at that time shall be deemed
to be the initial bona fide offering of the debt securities.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of Clorox, Clorox has been advised that in
the opinion of the SEC this indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against these
liabilities is asserted by such director, officer or controlling
person in connection with the debt securities being registered,
Clorox will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act.
Clorox will be governed by the final adjudication of such issue.
This does not apply to claims for indemnification against expenses
incurred or paid by a director, officer or controlling person of
Clorox in the successful defense of any action, suit or proceeding.
D. Clorox hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as a part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by Clorox
under Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the debt securities offered therein,
and the offering of the debt securities at that time shall
be deemed to be the initial bona fide offering of the debt
securities.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The
Clorox Company has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California,
on this 1st day of April, 1999.
THE CLOROX COMPANY
BY: /S/ G.C. SULLIVAN
G.C. Sullivan
Chairman of the Board and
Chief Executive Officer
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints, severally
and not jointly, G. Craig Sullivan, Peter D. Bewley, Karen M.
Rose and Henry J. Salvo, Jr., with full power to act alone,
his true and lawful attorneys-in-fact, with the power of
substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to
this Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the SEC, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing
requisite and necessary to be done as fully to all intents and
purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
- ------------------- -------------------- ------------------
/S/ G.C. SULLIVAN Chairman of the Board, January 20, 1999
G.C. Sullivan Chief Executive Officer
and Director
/S/ D. BOGGAN, JR. Director January 20, 1999
/S/ J. W. COLLINS Director January 20, 1999
J. W. Collins
/S/ U. FAIRCHILD Director January 20, 1999
U. Fairchild
/S/ T. M. FRIEDMAN Director January 20, 1999
T. M. Friedman
Director January 20, 1999
J. Manchot
/S/ D. O. MORTON Director January 20, 1999
D. O. Morton
/S/ K. MORWIND Director January 20, 1999
K. Morwind
/S/ E. L. SCARFF Director January 20, 1999
E. L. Scarff
/S/ L. R. SCOTT Director January 20, 1999
L. R. Scott
/S/ C. A. WOLFE Director January 20, 1999
C. A. Wolfe
/S/ K. M. ROSE Group Vice President- January 20, 1999
K. M. Rose Finance and Chief
Financial Officer
(Principal Financial
Officer)
/S/ H. J. SALVO, JR. Vice President- January 20, 1999
H. J. Salvo, Jr. Controller
(Principal Accounting
Officer)
<PAGE>
Exhibit Exhibit
Item Number Description
- -------- ---------- --------------------------------------------
1 1.1* Form of Underwriting Agreement.
4 4.1(A) Restated Certificate of Incorporation (filed
as Exhibit 4.1 to Registration Statement on
Form S-8 No. 333-44678 dated January 22,
1998, incorporated herein by this reference).
4.1(B) Bylaws (restated) of Clorox (filed as Exhibit 3(ii)
to the Annual Report on Form 10-K for the year
ended June 30, 1998, incorporated herein by
reference).
4.2 Conformed copy of Indenture, dated as of
March 15, 1999, between Clorox and Bank of
New York as Trustee.
5 5.1 Opinion of Peter D. Bewley, Esq., Senior Vice
President - General Counsel and Secretary of Clorox,
as to the validity of the debt securities being
offered.
12 12.1 Computation of Ratios of Earnings to Fixed
Charges.
23 23.1 The consent of Deloitte & Touche LLP,
independent public accountants.
23.2 The consent of KPMG LLP, independent public
accountants
23.3 The consent of Peter D. Bewley, Esq., Senior
Vice President - General Counsel and Secretary
of Clorox, is included in his opinion filed as
Exhibit 5.1 to this Registration Statement.
24 24.1 Power of Attorney (See Page II-4 of this
registration statement).
25 25.1 Statement of Eligibility of The Bank of
New York on Form T-1.
*To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
II-7
The Clorox Company
INDENTURE
Dated as of March 15, 1999
The Bank of New York
Trustee
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1. Definitions. 1
Section 1.2. Other Definitions. 6
Section 1.3. Incorporation by Reference of Trust
Indenture Act. 6
Section 1.4. Rules of Construction. 7
ARTICLE II. THE SECURITIES 7
Section 2.1. Issuable in Series. 7
Section 2.2. Establishment of Terms of Series of
Securities. 7
Section 2.3. Execution and Authentication. 10
Section 2.4. Registrar and Paying Agent. 11
Section 2.5. Paying Agent to Hold Money in Trust. 12
Section 2.6. Securityholder Lists. 12
Section 2.7. Transfer and Exchange. 13
Section 2.8. Mutilated, Destroyed, Lost and Stolen
Securities. 13
Section 2.9. Outstanding Securities. 14
Section 2.10. Treasury Securities. 15
Section 2.11 Temporary Securities. 15
Section 2.12. Cancellation. 15
Section 2.13 Defaulted Interest. 15
Section 2.14. Global Securities. 15
Section 2.15 CUSIP Numbers. 17
ARTICLE III. REDEMPTION 17
Section 3.1. Notice to Trustee. 17
Section 3.2. Selection of Securities to be Redeemed. 17
Section 3.3. Notice of Redemption. 18
Section 3.4. Effect of Notice of Redemption. 19
Section 3.5. Deposit of Redemption Price. 19
Section 3.6. Securities Redeemed in Part. 19
ARTICLE IV. COVENANTS 19
Section 4.1. Payment of Principal and Interest. 19
Section 4.2. SEC Reports. 19
Section 4.3. Compliance Certificate. 20
Section 4.4. Stay, Extension and Usury Laws. 20
Section 4.5. Corporate Existence. 20
Section 4.6. Taxes. 21
Section 4.7. Calculations of Original Issue Discount. 21
ARTICLE V. SUCCESSORS 21
Section 5.1. When Company May Merge, Etc. 21
Section 5.2. Successor Corporation Substituted. 21
ARTICLE VI. DEFAULTS AND REMEDIES 22
Section 6.1. Events of Default. 22
Section 6.2. Acceleration of Maturity; Rescission and
Annulment. 23
Section 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. 24
Section 6.4. Trustee May File Proofs of Claim. 25
Section 6.5. Trustee May Enforce Claims Without
Possession of Securities. 26
Section 6.6. Application of Money Collected. 26
Section 6.7. Limitation on Suits. 27
Section 6.8. Unconditional Right of Holders to Receive
Principal and Interest. 28
Section 6.9. Restoration of Rights and Remedies. 28
Section 6.10 Rights and Remedies Cumulative. 28
Section 6.11 Delay or Omission Not Waiver. 28
Section 6.12 Control by Holders. 28
Section 6.13 Waiver of Past Defaults. 29
Section 6.14 Undertaking for Costs. 29
ARTICLE VII. TRUSTEE 30
Section 7.1. Duties of Trustee. 30
Section 7.2. Rights of Trustee. 31
Section 7.3. Individual Rights of Trustee. 32
Section 7.4. Trustee's Disclaimer. 32
Section 7.5. Notice of Defaults. 33
Section 7.6. Reports by Trustee to Holders. 33
Section 7.7. Compensation and Indemnity. 33
Section 7.8. Replacement of Trustee. 34
Section 7.9. Successor Trustee by Merger, etc. 35
Section 7.10. Eligibility; Disqualification. 35
Section 7.11. Preferential Collection of Claims
Against Company. 36
Section 7.12. Trustee's Application for Instructions. 36
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE 36
Section 8.1. Satisfaction and Discharge of Indenture. 36
Section 8.2. Application of Trust Funds; Indemnification. 37
Section 8.3. Legal Defeasance of Securities of any Series. 38
Section 8.4. Covenant Defeasance. 40
Section 8.5. Repayment to Company. 41
ARTICLE IX. AMENDMENTS AND WAIVERS 41
Section 9.1. Without Consent of Holders. 41
Section 9.2. With Consent of Holders. 42
Section 9.3. Limitations. 42
Section 9.4. Compliance with Trust Indenture Act. 43
Section 9.5. Revocation and Effect of Consents. 43
Section 9.6. Notation on or Exchange of Securities. 44
Section 9.7. Trustee Protected. 44
ARTICLE X. MISCELLANEOUS 44
Section 10.1 Trust Indenture Act Controls. 44
Section 10.2 Notices. 44
Section 10.3. Communication by Holders with Other Holders. 45
Section 10.4 Certificate and Opinion as to Conditions
Precedent. 45
Section 10.5 Statements Required in Certificate or
Opinion. 46
Section 10.6 Rules by Trustee and Agents. 46
Section 10.7 Legal Holidays. 46
Section 10.8 No Recourse Against Others. 46
Section 10.9 Counterparts. 47
Section 10.10. Governing Laws. 47
Section 10.11. No Adverse Interpretation of Other
Agreements. 47
Section 10.12. Successors. 47
Section 10.13. Severability. 47
Section 10.14. Table of Contents, Headings, Etc. 47
Section 10.15. Securities in a Foreign Currency or in Euros. 47
Section 10.16. Judgment Currency. 48
ARTICLE XI. SINKING FUNDS 49
Section 11.1 Applicability of Article. 49
Section 11.2. Satisfaction of Sinking Fund Payments
with Securities. 49
Section 11.3. Redemption of Securities for Sinking Fund. 50
THE CLOROX COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of March 15, 1999
Sec. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 7.10
(b) 7.10
sec. 311(a) 7.11
(b) 7.11
(c) Not Applicable
sec. 312(a) 2.6
(b) 10.3
(c) 10.3
sec. 313(a) 7.6
(b)(1) 7.6
(b)(2) 7.6
(c)(1) 7.6
(d) 7.6
sec. 314(a) 4.2, 10.5
(b) Not Applicable
(c)(1) 10.4
(c)(2) 10.4
(c)(3) Not Applicable
(d) Not Applicable
(e) 10.5
(f) Not Applicable
sec. 315(a) 7.1
(b) 7.5
(c) 7.1
(d) 7.1
(e) 6.14
sec. 316(a) 6.12
(a)(1)(A) 6.12
(a)(1)(B) 6.13
(b) 6.8
sec. 317(a)(1) 6.3
(a)(2) 6.4
(b) 2.5
sec. 318(a) 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
Indenture dated as of March 15, 1999 between The Clorox Company, a
Delaware corporation ("Company"), and The Bank of New York, a
New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the
Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes
imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under
irect or indirect common control with such specified person.
For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any person,
shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies
of such person, whether through the ownership of voting
securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language
of the country of publication customarily published at least once
a day for at least five days in each calendar week and of general
circulation in any countries on whose exchange the Securities are
listed. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given by the Trustee shall constitute a
sufficient publication of such notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest
coupon appertaining thereto, that does not provide for the
identification of the Holder thereof.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors or pursuant to authorization
by the Board of Directors and to be in full force and effect on
the date of the certificate and delivered to the Trustee.
"Business Day" means, unless otherwise provided by Board
Resolution, Officers' Certificate or supplemental indenture
hereto for a particular Series, any day except a Saturday,
Sunday or a legal holiday in The city of New York on which
banking institutions are authorized or required by law,
regulation or executive order to close.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's
principal executive officer, principal financial officer or
principal accounting officer.
"Company Request" means a written request signed in the name of
the Company by its Chairman of the Board, a President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is
located at 101 Barclay Street, Floor 21W, New York, New York,
10286, Attention: Corporate Trust Administration.
"Debt" of any person as of any date means, without duplication,
all indebtedness of such person in respect of borrowed money,
including all interest, fees and expenses owed in respect thereto
(whether or not the recourse of the lender is to the whole of the
assets of such person or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Depositary" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more
Global Securities, the person designated as Depositary for such
Series by the Company, which Depositary shall be a clearing
agency registered under the Exchange Act; and if at any time
there is more than one such person, "Depositary" as used with
respect to the Securities of any Series shall mean the Depositary
with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an
amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"Euro" means the Currency Unit used by the European member states
as determined by the European Central Bank.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued
such currency for the payment of which obligations its full faith
and credit is pledged or (ii) obligations of a person controlled
or supervised by or acting as an agency or instrumentality of such
government the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by such government, which, in
either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant
to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depositary for such Series or its nominee, and
registered in the name of such Depositary or nominee.
"Holder" or "Securityholder" means a person in whose name a
Security is registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended from time to time
and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
"interest" with respect to any Discount Security which by its
terms bears interest only after Maturity, means interest payable
after Maturity.
"Maturity," when used with respect to any Security or installment
of principal thereof, means the date on which the principal of
such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption,
notice of option to elect repayment or otherwise.
"Officer" means the Chairman of the Board, any President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel.
The counsel may be an employee of or counsel to the Company.
"person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock
company, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on, and any
Additional Amounts in respect of, the Security.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily
performs functions similar to those performed by these persons
or any person who is referred any corporate trust matter because
of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility
for the administration of this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments
of the Company of any Series authenticated and delivered under
this Indenture.
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant
to Sections 2.1 and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect
Subsidiary of the Company that would be a "significant subsidiary"
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such
regulation is in effect on the date hereof, or (ii) any group of
direct or indirect Subsidiaries of the Company that, taken together
as a group, would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as amended, as such regulation is in effect
on the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal
of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any specified person means any corporation of which
at least a majority of the outstanding stock having by the terms
thereof ordinary voting power for the election of directors of such
corporation (irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned by such person, or by one or
more other Subsidiaries, or by such person and one or more other
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa-77bbbb) as in effect on the date of this
Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "TIA"
means, to the extent required by any such amendment, the
Trust Indenture Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall
have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or
include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, "Trustee"
as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency
or instrumentality of The United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case
of (i) and (ii) are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to
any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation
evidenced by such depository receipt.
Section 1.2 Other Definitions.
DEFINED IN
TERM SECTION
- ----------- --------
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA and not otherwise defined herein are used herein
as so defined.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles;
(c) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles in effect as
of the time when and for the period as to which such accounting
principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the
plural include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1 Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. All
Securities of a Series shall be identical except as may be set
forth in a Board Resolution, a supplemental indenture or an
Officers' Certificate detailing the adoption of the terms thereof
pursuant to the authority granted under a Board Resolution. In
the case of Securities of a Series to be issued from time to time,
the Board Resolution, Officers' Certificate or supplemental
indenture may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities
may differ between Series in respect of any matters, provided that
all Series of Securities shall be equally and ratably entitled to
the benefits of the Indenture.
Section 2.2 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series,
the following shall be established (as to the Series generally,
in the case of Subsection 2.2.1, and either as to such Securities
within the Series or as to the Series generally, in the case of
Subsections 2.2.2 through 2.2.21) by a Board Resolution, a
supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
2.2.1. the title of the Series, including CUSIP numbers
(which shall distinguish the Securities of that particular
Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of
the principal amount thereof) at which the Securities of the
Series will be issued;
2.2.3. any limit upon the aggregate principal amount of
the Securities of the Series which may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series pursuant to
Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the
Securities of the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable)
per annum or, if applicable, the method used to determine such
rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at
which the Securities of the Series shall bear interest, if any,
the date or dates from which such interest, if any, shall accrue,
the date or dates on which such interest, if any, shall commence
and be payable and any regular record date for the interest
payable on any interest payment date;
2.2.6. the place or places where the principal of premium,
and interest, if any, on the Securities of the Series shall be
payable, or the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon
which the Securities of the Series may be redeemed, in whole or
in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or
purchase the Securities of the Series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation or the right, if any, of the Company
to redeem and pay the Holders for a portion or all of the face
amount and accrued but unpaid interest of any Securities in a
Series held by them prior to the Stated Maturity thereof and the
period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the Series shall
be redeemed, in whole or in part, pursuant to such right;
2.2.9. the dates, if any, on which and the price or prices
at which the Securities of the Series will be repurchased by the
Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;
2.2.10. if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the
Series shall be issuable;
2.2.11. the forms of the Securities of the Series in bearer
or fully registered form (and, if in fully registered form, whether
the Securities will be issuable as Global Securities);
2.2.12. if other than the principal amount thereof, the portion
of the principal amount of the Securities of the Series that shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of
the Series, which may be Dollars or any Foreign Currency,
including, but not limited to, the Euro, and if such currency of
denomination is a composite currency other than the Euro, the agency
or organization, if any, responsible for overseeing such composite
currency;
2.2.14. the designation of the currency, currencies or
currency units in which payment of the principal of, premium and
interest, if any, on the Securities of the Series will be made;
2.2.15. if payments of principal of premium or interest,
if any, on the Securities of the Series are to be made in one
or more currencies or currency units other than that or those
in which such Securities are denominated, the manner in which
the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment of
principal of or interest, if any, on the Securities of the
Series will be determined, if such amounts may be determined
by reference to an index based on a currency or currencies or
by reference to a commodity, commodity index, stock exchange
index or financial index;
2.2.17. the provisions, if any, relating to any security
provided for the Securities of the Series;
2.2.18. any addition to or change in the Events of Default
which applies to any Securities of the Series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 6.2;
2.2.19. any addition to or change in the covenants set
forth in Article IV or V which applies to Securities of the Series;
2.2.20. any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 9.1, but which
may modify or delete any provision of this Indenture insofar as it
applies to such Series); and
2.2.21. any depositories, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture or Officers' Certificate
referred to above, and the authorized principal amount of any
Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such
Board Resolution, supplemental indenture or Officers' Certificate.
Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The
signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided
in the Board Resolution, supplemental indenture hereto or
Officers' Certificate, upon receipt by the Trustee of a Company
Order. Such Company Order may authorize authentication and
delivery pursuant to electronic instructions from the Company
or its duly authorized agent or agents. Each Security shall be
dated the date of its authentication unless otherwise provided
by a Board Resolution, a supplemental indenture hereto or an
Officers' Certificate.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum
principal amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers' Certificate delivered
pursuant to Section 2.2, except as provided in Section 2.9.
Prior to the issuance of Securities of any Series, the Trustee
shall have received and (subject to Section 7.2) shall be fully
protected in relying on: (a) the Board Resolution, supplemental
indenture hereto or Officers' Certificate establishing the form
of the Securities of that Series or of Securities within that
Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officers' Certificate
complying with Section 10.4, and (c) an Opinion of Counsel
complying with Section 10.4.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee,
being advised by counsel, determines that such action may not
lawfully be taken; or (b) if the Trustee in good faith by a
trust committee of Responsible Officers shall determine that
such action would expose the Trustee to personal liability to
Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an
Affiliate.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant
to Section 2.2, an office or agency where Securities of such Series
may be presented or surrendered for payment ("Paying Agent"),
where Securities of such Series may be surrendered for registration
of transfer or exchange ("Registrar") and where notices and
demands to or upon the Company in respect of the Securities of
such Series and this Indenture may be served ("Service Agent").
The Registrar shall keep a register with respect to each Series
of Securities and to their transfer and exchange. The Company
will give prompt written notice to the Trustee of the name and
address, and any change in the name or address, of each Registrar,
Paying Agent or Service Agent. If at any time the Company shall
fail to maintain any such required Registrar, Paying Agent or
Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service
agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligations to maintain
a Registrar, Paying Agent and Service Agent in each place so
specified pursuant to Section 2.2 for Securities of any Series
for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any
change in the name or address of any such co-registrar, additional
paying agent or additional service agent. The term "Registrar"
includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes
any additional service agent.
The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Service Agent for each Series unless another
Registrar, Paying Agent or Service Agent, as the case may be,
is appointed prior to the time Securities of that Series are
first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust, for
the benefit of Securityholders of any Series of Securities, or
the Trustee, all money held by the Paying Agent for the payment
of principal of or interest on the Series of Securities, and
will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by
it as Paying Agent.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names
and addresses of Securityholders of each Series of Securities
and shall otherwise comply with TIA sec. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee within 15 days of the Record Date a list of the Holders
as of the Record Date and at such other times as the Trustee
may request in writing (but in no event less often than every
six months), a list, in such form and as of such date as the
Trustee may reasonably require, of the names and addresses of
Securityholders of each Series of Securities.
Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar
or a co-registrar with a request to register a transfer or
to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges,
the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made for any registration
of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or
similar governmental charge payable upon exchanges pursuant
to Section 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to
issue, register the transfer of, or exchange Securities of any
Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of
redemption of Securities of that Series selected for redemption
and ending at the close of business on the day of such mailing,
or (b) to register the transfer of or exchange Securities of
any Series selected, called or being called for redemption as a
whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same Series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as
may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon a
Company Request the Trustee shall authenticate and make available
for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone acting in good faith,
and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities
of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in
the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding until the Trustee receives proof satisfactory
to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds on the Maturity of Securities
of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the
Series cease to be outstanding and interest on them ceases to
accrue.
A Security does not cease to be outstanding because the Company
or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discount Security that shall be deemed
to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date
of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver Securities of a
Series owned by the Company or an Affiliate shall be disregarded,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary
Securities upon a Company Order. Temporary Securities shall
be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate
definitive Securities of the same Series and date of maturity
in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this
Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall dispose of such
canceled Securities in its customary manner.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to
the extent permitted by law, any interest payable on the
defaulted interest (at the rate stated in the description of
the applicable Series), to the persons who are Securityholders
of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 10 days
before the record date, the Company shall mail to the Trustee
and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to
be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 2.14. Global Securities.
Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish
whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and
the Depositary for such Global Security or Securities.
Transfer and Exchange. Notwithstanding any provisions to
the contrary contained in Section 2.7 and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7
for Securities registered in the names of Holders other than the
Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any
time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails
to appoint a successor Depositary within 90 days of such event,
(ii) the Company executes and delivers to the Trustee an Officers'
Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened
and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and
terms.
Except as provided in this Section 2.14.2, a Global Security may
not be transferred except as a whole by the Depositary with
respect to such Global Security to a nominee of such Depositary,
by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a
successor Depositary.
Legend. Any Global Security issued hereunder shall bear
a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of the Depositary or a nominee of the Depositary. This Security
is exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such a
successor Depositary."
Acts of Holders. The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent,
waiver or other action which a Holder is entitled to give or
take under the Indenture.
Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of and interest, if any, on any Global
Security shall be made to the Holder thereof.
Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall
treat a person as the Holder of such principal amount of outstanding
Securities of such Series represented by a Global Security as
shall be specified in a written statement of the Depositary with
respect to such Global Security, for purposes of obtaining any
consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Indenture.
Section 2.15. CUSIP Numbers.
The Company in issuing the Securities shall apply for, obtain
and use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed
only on the other elements of identification printed on the
Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP Numbers.
ARTICLE III
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or
may covenant to redeem and pay the Series of Securities or any
part thereof prior to the Stated Maturity thereof at such time
and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all
or part of the Series of Securities pursuant to the terms of
such Securities, it shall notify the Trustee of the redemption
date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be
acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if
less than all the Securities of a Series are to be redeemed, the
Trustee shall select the Securities of the Series to be redeemed in
any manner that the Trustee deems appropriate. The Trustee shall
make the selection (which may be pro rata or by lot) from Securities
of the Series outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of
Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000 or, with respect to
Securities of any Series issuable in other denominations pursuant
to Section 2.2.10, the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this
Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series
called for redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers'
Certificate, at least 30 days but not more than 60 days before
a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Securities are to be
redeemed and if any Bearer Securities are outstanding, publish
on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption
must be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date;
(f) the CUSIP number, if any; and
(g) any other information as may be required by the terms
of the particular Series or the Securities of a Series being redeemed.
At a Company Request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities of a Series called for redemption become
due and payable on the redemption date and at the redemption
price. A notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at
the redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent immediately available funds sufficient
to pay the redemption price of and accrued interest, if any,
on all Securities to be redeemed on that date. Such funds
shall not be eligible for investment.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of
the same Series and the same maturity equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders
of each Series of Securities that it will duly and punctually
pay the principal of, premium, if any, and interest, if any,
on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee within 15 days after
it files them with the SEC copies of the annual reports and of
the information, documents, and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other
provisions of TIA sec. 314(a). Delivery of such reports,
information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained
therein or determinable from information contained therein,
including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers' Certificate).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company, an Officers'
Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers
with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge
the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith (and in any event
within five Business Days) upon becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and
the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done
all things necessary to preserve and keep in full force and
effect its corporate existence in accordance with the rights
(charter and statutory), licenses and franchises of the Company.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all material taxes,
assessments and governmental levies, except as contested in
good faith and by appropriate proceedings.
Section 4.7. Calculation of Original Issue Discount.
The Company shall provide to the Trustee on a timely basis such
information as the Trustee requires to enable the Trustee to
prepare and file any form required to be submitted by the Company
with the Internal Revenue Service and the Securityholders
relating to original issue discount, including, without limitation,
form 1099-OID or any successor form.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey,
transfer or lease all or substantially all of its properties and
assets to, any person (a "successor person"), and may not permit
any person to merge into, or convey, transfer or lease its
properties and assets substantially as an entirety to, the
Company, unless:
(a) the successor person (if any) is a corporation,
partnership, trust or other entity organized and validly
existing under the laws of any U.S. domestic jurisdiction
and expressly assumes the Company's obligations on the
Securities and under this Indenture; and
(b) immediately after giving effect to the transaction,
no Default or Event of Default, shall have occurred and be
continuing.
The Company shall deliver to the Trustee prior to the consummation
of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the
proposed transaction complies with this Indenture and, if
applicable, any supplemental indenture entered into by such
successor person.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance
or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which
the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person
has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, lease, conveyance
or other disposition shall not be released from the obligation
to pay the principal of and interest, if any, on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events,
unless in the establishing Board Resolution, supplemental
indenture or Officers' Certificate, it is provided that such
Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security
of that Series when it becomes due and payable, and continuance
of such default for a period of 30 days (unless the entire amount
of such payment is deposited by the Company with the Trustee or
with a Paying Agent prior to the expiration of such period of
30 days); or
(b) default in the payment of the principal of any Security
of that Series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due in respect of any Security of that Series; or
(d) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty that has been included in this Indenture solely for
the benefit of Series of Securities other than that Series),
which default continues uncured for a period of 60 days after
there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding
Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is unable to pay its debts as the same
become due; or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution,
a supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.18.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series
at the time outstanding occurs and is continuing (other than an
Event of Default referred to in Section 6.1(f) or (g)), then in
every such case the Trustee or the Holders of not less than 25%
in principal amount of the outstanding Securities of that Series
may declare the principal amount (or, if any Securities of that
Series are Discount Securities, such portion of the principal amount
as may be specified in the terms of such Securities) of and accrued
and unpaid interest, if any, on all of the Securities of that Series
to be due and payable within five (5) Business Days, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become
due and payable within such five (5) Business Day period. If
an Event of Default specified in Section 6.1(f) or (g) shall occur,
the principal amount (or specified amount) of and accrued and
unpaid interest, if any, on all outstanding Securities shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect
to any Series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Trustee or the Holders
of not less than 25% in principal amount of the outstanding
Securities of that Series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue interest, if any, on all Securities
of that Series,
(ii) the principal of any Securities of that Series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon any overdue principal and overdue
interest at the rate or rates prescribed therefor in such
Securities, and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of
that Series, other than the non-payment of the principal of
Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 6.13.
No such rescission shall affect any subsequent Default or
impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on
any Security when such interest becomes due and payable
and such default continues for a period of 30 days; or
(b) default is made in the payment of principal of any
Security at the Maturity thereof; or
(c) default is made in the deposit of any sinking fund
payment when and as due by the terms of a Security;
then, the Company will, upon demand of the Trustee, pay to
it within five (5) Business Days, for the benefit of the
Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest and,
to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal or any overdue
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce
the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or deemed to be
payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to any Securities of any
Series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other person that has expressly assumed the Company's
obligations on the Securities under the Indenture or the property
of the Company or the property of such other person or either of
their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise.
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial
proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee
under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 6.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the
Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 7.7; and
Second: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities
for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
No Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that Series;
(b) the Holders of not less than a majority in principal
amount of the outstanding Securities of that Series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the outstanding Securities
of that Series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
Section 6.8. Unconditional Right of Holders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Stated
Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such
Holder.
Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities
in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be, upon any Event of Default.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer of
the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the outstanding Securities of any Series may on behalf of the
Holders of all the Securities of such Series waive any past
Default hereunder with respect to such Series and its consequences,
except a Default in the payment of the principal of or interest
on any Security of such Series (provided, however, that the
Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit,
having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the outstanding
Securities of any Series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of
or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case
of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs;
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied duties,
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee
and conforming to the requirements of this Indenture; however,
in the case of any such Officers' Certificates or Opinions of
Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine such Officers' Certificates and Opinions of Counsel to
determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy
of any mathematical calculations or other facts stated therein);
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it with
respect to Securities of any Series in good faith in accordance
with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series relating
to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such Series;
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section;
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless and until it receives indemnity
satisfactory to it against any loss, liability, claim, damage
or expense;
(f) The Trustee shall not be liable for interest on any
money received by it. Money held in trust by the Trustee
need not be segregated from other funds except to the extent
required by law;
(g) No provision of this Indenture shall require the Trustee
to risk its own funds or otherwise incur any financial liability
in the performance of any of its duties, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it; and
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and
standard of care as are set forth in paragraphs (a), (b) and (c)
of this Section with respect to the Trustee.
Section 7.2. Rights of Trustee.
The Trustee may conclusively rely on and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note, other evidence
of indebtedness or other paper or document (whether in its
original or facsimile form) believed in good faith by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document;
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel;
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care. No Depositary shall be deemed an
agent of the Trustee and the Trustee shall not be responsible
for any act or omission by any Depositary;
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers;
(e) The Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders of Securities
unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other person employed to act
hereunder.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with
the Company or an Affiliate with the same rights it would have
if it were not Trustee. Any Agent may do the same with like
rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement
in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is actually
known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder of the Securities of that
Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default
or Event of Default within 90 days after it occurs or, if later,
after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a
Default or Event of Default in payment of principal of or
interest on any Security of any Series, the Trustee may withhold
the notice if and so long as its corporate trust committee or a
committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders
of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after May 1 in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and
addresses appear on the register kept by the Registrar and,
if any Bearer Securities are outstanding, publish in an
Authorized Newspaper, a brief report dated as of such May 1,
in accordance with, and to the extent required under, TIA sec. 313.
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and
each stock exchange on which the Securities of that Series are
listed. The Company shall promptly notify the Trustee when
Securities of any Series are listed on any stock exchange or
delisted therefrom.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services, as shall be agreed upon from
time to time in writing. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for
all out-of-pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee's
agents and counsel.
The Company shall fully indemnify the Trustee and any
predecessor Trustee (including the cost of defending itself)
against any and all loss, liability, claim, damage or expense
(including taxes other than taxes based on the income of the
Trustee) incurred by it except as set forth in the next
paragraph in the acceptance and performance of its duties
under this Indenture as Trustee or Agent. The Trustee shall
notify the Company promptly of any claim for which it may
seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall
not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and
agents of the Trustee.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through its own
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any
Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on
particular Securities of that Series.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or
more Series by so notifying the Company. The Holders of a
majority in principal amount of the Securities of any Series
may remove the Trustee with respect to that Series by so
notifying the Trustee and the Company. The Company may
remove the Trustee with respect to Securities of one or more
Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority
in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee with respect to the Securities of any
one or more Series does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series
may petition at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of any one or
more Series fails to comply with Section 7.10, any Securityholder
of the applicable Series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.
Promptly thereafter, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject
to the lien provided for in Section 7.7, the resignation or
removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties
of the Trustee with respect to each Series of Securities for
which it is acting as Trustee under this Indenture. A successor
Trustee shall mail a notice of its succession to each
Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an
Authorized Newspaper. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under
Section 7.7 hereof shall continue for the benefit of the retiring
trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, sells
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA sec. 310(a)(1), (2) and (5). The Trustee s
hall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA sec. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA sec. 311(a), excluding any
creditor relationship listed in TIA sec. 311(b). A Trustee who
has resigned or been removed shall be subject to TIA sec. 311(a)
to the extent indicated.
Section 7.12. Trustee's Application for Instructions from
the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing
any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action
shall be taken or such omission shall be effective. The Trustee
shall not be liable for any action taken by, or omission of, the
Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date
shall not be less than three Business Days after the date any
officer of the Company actually receives such application, unless
any such officer shall have consented in writing to any earlier
date) unless prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of
further effect (except as hereinafter provided in this
Section 8.1), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation
(1) have become due and payable, or\
(2) will become due and payable at their
Stated Maturity within one year, or
(3) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to
Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Securities which have become due and payable on or prior to
the date of such deposit) or to the Stated Maturity or redemption
date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee
under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section,
the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and
8.5 shall survive such satisfaction and discharge.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
deposited with the Trustee pursuant to Section 8.1, all
money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.3
or 8.4 and all money received by the Trustee in respect of U.S.
Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4,
shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money
has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments
as contemplated by Section 8.3 or 8.4;
(b) The Company shall pay and shall fully indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Section 8.3 or
8.4 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders; and
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any U.S. Government Obligations
or Foreign Government Obligations or money held by it as provided
in Section 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for
which such U.S. Government Obligations or Foreign Government
Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations
held under this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2.20, to be inapplicable to Securities of any Series,
the Company shall be deemed to have paid and discharged the
entire indebtedness on all the outstanding Securities of such
Series on the 91st day after the date of the deposit referred to
in subparagraph (d) hereof, and the provisions of this Indenture,
as it relates to such outstanding Securities of such Series,
shall no longer be in effect (and the Trustee, at the expense
of the Company, shall, at Company Request, execute proper
instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d)
hereof, (i) payment of the principal of and each installment
of principal of and interest on the outstanding Securities of
such Series on the Stated Maturity of such principal or
installment of principal or interest and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities
of such Series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and
the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 7.7, 8.2, 8.3
and 8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust
for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit
of the Holders of such Securities (i) in the case of Securities
of such Series denominated in Dollars, cash in Dollars (or such
other money or currencies as shall then be legal tender in the
United States) and/or U.S. Government Obligations, or (ii) in
the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or
Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with
their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of
and interest, if any, on all the Securities of such Series
on the dates such installments of interest or principal are due;
(e) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(f) no Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing
on the date of such deposit or during the period ending on the
91st day after such date;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the Securities of
such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and d
ischarge had not occurred;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made
by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of
the company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising
from such deposit constituting an investment company (as
defined in the Investment Company Act of 1940, as amended),
or such trust shall be qualified under such Act or exempt
from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to the
defeasance contemplated by this Section have been complied
with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to
Section 2.2.20 to be inapplicable to Securities of any Series,
on and after the 91st day after the date of the deposit
referred to in subparagraph (a) hereof, the Company may omit
to comply with any term, provision or condition set forth
under Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, and 5.1 as well
as any additional covenants contained in a supplemental
indenture hereto for a particular Series of Securities or a
Board Resolution or an Officers' Certificate delivered pursuant
to Section 2.2.20 (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default
under Section 6.1) and the occurrence of any event described
in clause (e) of Section 6.1 shall not constitute a Default
or Event of Default hereunder, with respect to the Securities
of such Series, provided that the following conditions shall
have been satisfied:
(a) With reference to this Section 8.4, the Company has
deposited or caused to be irrevocably deposited (except as
provided in Section 8.2(c)) with the Trustee as trust funds
in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities (i)
in the case of Securities of such Series denominated in
Dollars, cash in Dollars (or such other money or currencies
as shall then be legal tender in the United States) and/or
U.S. Government Obligations, or (ii) in the case of
Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest
and principal in respect thereof, in accordance with their
terms, will provide (and without reinvestment and assuming no
tax liability will be imposed on such Trustee), not later
than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such
Series on the dates such installments of interest or principal
are due;
(b) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(c) No Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing
on the date of such deposit or during the period ending on the
91st day after such date;
(d) the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that Holders of the Securities
of such Series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not
occurred;
(e) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by the
Company with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the
Company or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the defeasance contemplated by this Section have been complied
with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that,
Securityholders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned
property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without
the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form
and terms and conditions of Securities of any Series as
permitted by this Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities
of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series
affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for
the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.13, the Holders
of at least a majority in principal amount of the outstanding
Securities of each Series affected by such waiver by notice to
the Trustee (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series)
may waive compliance by the Company with any provision of this
Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular
form of any proposed supplemental indenture or waiver, but it
shall be sufficient if such consent approves the substance
thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall mail to the
Holders of Securities affected thereby and, if any Bearer
Securities affected thereby are outstanding, publish on one
occasion in an Authorized Newspaper, a notice briefly describing
the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment
or waiver may not:
(a) change the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment
of interest (including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of
any Security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount of Discount Securities
payable upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment
of the principal of or interest, if any, on any Security
(except a rescission of acceleration of the Securities of
any Series by the Holders of at least a majority in principal
amount of the outstanding Securities of such Series and a
waiver of the payment default that resulted from such
acceleration);
(f) make the principal of or interest, if any, on any
Security payable in any currency other than that stated in the
Security;
(g) make any change in Section 6.8, 6.13, 9.3 (this sentence),
10.15 or 10.16; or
(h) waive a redemption payment with respect to any Security
or change any of the provisions with respect to the redemption of
any Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture
hereto that complies with the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the
Holder and every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion
of a Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or
waiver unless it is of the type described in any of clauses
(a) through (h) of Section 9.3. In that case, the amendment
or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the
consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment
or waiver on any Security of any Series thereafter authenticated.
The Company in exchange for Securities of that Series may issue
and the Trustee shall authenticate upon request new Securities
of that Series that reflect the amendment or waiver.
Section 9.7. Trustee Protected.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall
sign all supplemental indentures, except that the Trustee need
not sign any supplemental indenture that affects its own rights,
duties or immunities.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be
included in this Indenture by the TIA, such required or deemed
provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing (which may be by facsimile)
and delivered in person or mailed by first-class mail:
if to the Company:
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
Facsimile: (510) 271-1696
Telephone: (510) 271-7000
Attention: Secretary
if to the Trustee:
The Bank of New York
101 Barclay Street
New York, NY 10286
Facsimile: (212) 815-5915
Telephone: (212) 815-5084
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 to a Securityholder shall be mailed
by first-class mail to his address shown on the register kept
by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice
or communication to a Securityholder of any Series or any defect
in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given,
whether or not the Securityholder receives it.
If the Company mails a notice or communication to Securityholders,
it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA
sec. 312(b) with other Securityholders of that Series or any
other Series with respect to their rights under this Indenture or
the Securities of that Series or all Series. The Company, the
Trustee, the Registrar and anyone else shall have the protection
of TIA sec. 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been
complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
a certificate provided pursuant to TIA sec. 314(a)(4)) shall
comply with the provisions of TIA sec. 314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting
of Securityholders of one or more Series. Any Agent may make
reasonable rules and set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers'
Certificate or supplemental indenture for a particular Series,
a "Legal Holiday" is any day that is not a Business Day.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings
of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency or
in Euros.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered
pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of
Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including Euros),
then the principal amount of Securities of such Series which
shall be deemed to be outstanding for the purpose of taking
such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such
time. For purposes of this Section 10.15, "Market Exchange
Rate" shall mean the noon Dollar buying rate in New York City
for cable transfers of that currency as published by the Federal
Reserve Bank of New York; provided, however, in the case of Euros,
Market Exchange Rate shall mean the rate of exchange determined
by the European Central Bank (or any successor thereto) as
published in the Official Journal of the European Union (such
publication or any successor publication, the "Journal"). If
such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York or, in the case of
Euros, the rate of exchange as published in the Journal, as
of the most recent available date, or quotations or, in the
case of Euros, rates of exchange from one or more major banks
in The City of New York or in the country of issue of the
currency in question or, in the case of Euros, in Luxembourg
or such other quotations or, in the case of Euros, rates of
exchange as the Trustee, upon consultation with the Company,
shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in currency
other than Dollars in connection with any action taken by
Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided
for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to
the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest or other
amount on the Securities of any Series (the "Required Currency")
into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New
York Banking Day, then, the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, any recovery pursuant to any
judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed
to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of
New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of a Series, except
as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for
by the terms of the Securities of any Series is herein referred
to as a "mandatory sinking fund payment" and any other amount
provided for by the terms of Securities of such Series is herein
referred to as an "optional sinking fund payment." If provided
for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be
applied to the redemption of Securities of any Series as provided
for by the terms of the Securities of such Series.
Section 11.2. Satisfaction of Sinking Fund Payments
with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any
Series to be made pursuant to the terms of such Securities
(1) deliver outstanding Securities of such Series to which
such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series
to which such sinking fund payment is applicable and which
have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except
pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other
optional redemptions pursuant to the terms of such Securities,
provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee,
together with an Officers' Certificate with respect thereto,
not later than 15 days prior to the date on which the Trustee
begins the process of selecting Securities for redemption, and
shall be credited for such purpose by the Trustee at their
face amount or accreted value, whichever is lowest, for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a
result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.2, the principal amount of
Securities of such Series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of such Series for redemption,
except upon receipt of a Company Order that such action be taken,
and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall
from time to time upon receipt of a Company Order pay over and
deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to
the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash
payment required to be released to the Company.
Section Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the
Board Resolution, supplemental indenture hereto or Officers'
Certificate in respect of a particular Series of Securities)
prior to each sinking fund payment date for any Series of
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that Series pursuant to the terms of
that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting of Securities
of that Series pursuant to Section 11.2, and the optional amount,
if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers'
Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in
Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner
provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
The Clorox Company
By: /s/ PETER D. BEWLEY
Name: PETER D. BEWLEY
Its: SENIOR VICE PRESIDENT - GENERAL COUNSEL AND SECRETARY
The Bank of New York
By: /s/ THOMAS C. KNIGHT
Name: THOMAS C. KNIGHT
Its: ASSISTANT VICE PRESIDENT
April 1, 1999
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
Re: Registration Statement on Form S-3; $750,000,000 Aggregate
Principal Amount of Debt Securities
Ladies and Gentlemen:
I am Senior Vice President - General Counsel and Secretary of The
Clorox Company, a Delaware corporation (the "Company"), and, in
such capacity, have acted as counsel to the Company in connection
with the registration pursuant to the Securities Act of 1933 (the
"Securities Act"), of up to $750,000,000 aggregate principal amount
of debt securities (the "Securities") pursuant to a Registration
Statement on Form S-3 (the "Registration Statement"), to which
Registration Statement this opinion shall be filed as an exhibit.
The Securities would be issued pursuant to that certain Indenture,
dated as of March 15, 1999 (the "Indenture") entered into between
the Company and The Bank of New York, as Trustee (the "Trustee").
I have examined (i) the Restated Certificate of Incorporation and
the Bylaws (restated) of the Company, (ii) the originals, or copies
certified or otherwise identified, of the Company's corporate
records, including minute books, resolutions (including, without
limitation, the proceedings of the Board of Directors with respect
to the proposed offering of the Securities), (iii) the Registration
Statement and schedules and exhibits thereto, (iv) the Indenture and
(v) such other documents and instruments as are in my judgment
necessary or appropriate as a basis for the opinions expressed below.
I have also made, or caused to be made, such investigations of law
as are in my judgment necessary or appropriate as a basis for the
opinions expressed below.
In rendering the following opinions, I have assumed that the
actions relating to the authorization, registration, offer and
issuance of the Securities taken by the Company's Board of
Directors prior to the date of this opinion will not be revoked
by any action of the Company's Board of Directors.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding instrument of
the Company.
3. Upon (a) the Registration Statement becoming effective under
the Securities Act, (b) the authorization by the Company of a
supplement to the Indenture and/or the issuance, sale and
delivery of the Securities pursuant to a resolution of the
Board of Directors defining the terms thereof, (c) the
authorization by resolutions of the Board of Directors of the
Company, or the proper officers of the Company duly authorized,
and receipt by the Company of sufficient consideration for the
issuance, sale and delivery of such Securities and (d) the
execution of the Securities by the proper officers of the Company
and the authentication thereof by the Trustee, the Securities
will be duly authorized and issued and will constitute the legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture and any supplements thereto.
My opinions set forth in paragraphs (2) and (3) above with respect
to the binding effect of the Indenture and the Securities issued
pursuant to the Indenture are subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws
now or hereafter in effect relating to, affecting or limiting
creditors' rights and (ii) general principles of equity (whether
considered in a proceeding at law or in equity) and the discretion
of the court before which any proceeding may be brought.
I hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement and to the reference to me under the
caption "Validity of Debt Securities" in the Prospectus constituting
a part of the Registration Statement.
Very truly yours,
/s/ Peter D. Bewley
Peter D. Bewley
Senior Vice President - General Counsel and Secretary
<TABLE>
<CAPTION>
Exhibit 12.1
Computation of Ratios of Earnings to Fixed Charges
Six Months
Ended Fiscal Year Ended
----------- -------------------------------------------
Earnings 12/31/98 1998 1997 1996 1995 1994
- -------------- ----------- ------- ------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before income taxes, extraordinary items,
and cumulative effect of accounting changes
Clorox 225,777 471,925 416,015 370,387 337,894 306,633
First Brands 49,921 84,694 83,398 108,919 74,824 103,735
- -------------- ----------- ------- ------- -------- -------- -------
Combined 275,698 556,619 499,413 479,306 412,718 410,368
Additions:
Amortization of previously capitalized
First Brands interest 800 1,600 1,550 1,500 1,450 1,400
Deductions:
First Brands incremental capitalized (1,154) (2,297) (1,864) (2,017) (849) (1,120)
interest
Undistributed proportionate share of
net income of investees accounted for
by the equity method (4,842) ( 3,418) (4,891) (4,019) (4,129) (2,550)
----------- ------- ------- -------- -------- -------
Total Earnings 270,502 552,504 494,208 474,770 409,190 408,098
- -------------- ----------- ------- ------- -------- -------- -------
Fixed Charges
- --------------------
Interest Expense
Clorox 35,463 69,702 55,623 38,288 25,120 18,424
First Brands 14,339 29,604 20,383 17,546 18,819 22,390
Combined 2,864 4,561 3,992 3,963 3,979 4,260
- -------------- ----------- ------- ------- -------- -------- -------
52,666 103,867 79,998 59,797 47,918 45,074
First Brands incremental capitalized 1,154 2,297 1,864 2,017 849 1,120
interest
Percent of rental expense attributable 973 1948 2182 2460 2862 3022
to interest
Total Fixed Charges 54,793 108,112 84,044 64,274 51,629 49,216
- -------------- ----------- ------- ------- -------- -------- -------
- -------------- ----------- ------- ------- -------- -------- -------
Total Earnings Before Fixed Charges 325,295 660,616 578,252 539,044 460,819 457,314
- -------------- ----------- ------- ------- -------- -------- -------
- -------------- ----------- ------- ------- -------- -------- -------
Ratio of Earnings to Fixed Charges 5.9 6.1 6.9 8.4 8.9 9.3
- -------------- ----------- ------- ------- -------- -------- -------
- -------------- ----------- ------- ------- -------- -------- -------
</TABLE>
Exhibit 23.1
CONSENT OF DELOITTE & TOUCHE LLP INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of The Clorox Company on Form S-3 of our report dated
July 30, 1998, appearing in and incorporated by reference in
the Annual Report on Form 10-K of The Clorox Company for the
year ended June 30, 1998 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
INDEPENDENT PUBLIC ACCOUNTANTS
Oakland, California
March 31, 1999
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The Clorox Company
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of The Clorox Company
of our audit reports dated August 6, 1998, relating to
the consolidated balance sheets of First Brands Corporation
and subsidiaries as of June 30, 1998 and 1997, and the
related consolidated statements of income, stockholders'
equity and cash flows for each of the years in the three
year period ended June 30, 1998, and the related schedule,
which audit reports appear in the June 30, 1998 annual
report on Form 10-K of First Brands Corporation, in
the Quarterly Report on Form 10-Q of The Clorox Company
for the fiscal quarter ended December 31, 1998, and to the
reference to our firm under the heading "Experts" in Form
S-3.
Also with respect to such Quarterly Report, we acknowledge
our awareness of the use therein of our report dated
October 23, 1998 related to our review of the First Brands
Corporation interim financial information as of and for
the three months ended September 30, 1998.
Pursuant to Rule 436(c) under the Securities Act of 1933,
such report is not considered part of a registration
statement prepared or certified by an accountant or a
report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
/s/ KPMG LLP
New York, New York
March 31, 1999
===================================================================
FORM T1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
--
====================================
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer identification no.)
if not a U.S. national bank)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
====================================
THE CLOROX COMPANY
(Exact name of obligor as specified in its charter)
Delaware 31-0595760
(State or other jurisdiction of (I.R.S. employeridentification no.)
incorporation or organization)
1221 Broadway 94612-1888
Oakland, California (Zip code)
(Address of principal executive offices)
====================================
Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- -----------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York, N.Y.
of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a29 under the Trust Indenture Act of 1939 (the "Act")
and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T1
filed with Registration Statement No. 336215, Exhibits 1a and 1b
to Form T1 filed with Registration Statement No. 33-21672 and
Exhibit 1 to Form T1 filed with Registration Statement No. 3329637.)
4. A copy of the existing Bylaws of the Trustee. (Exhibit
4 to Form T1 filed with Registration Statement No. 3331019.)
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T1 filed with Registration
Statement No. 3344051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its supervising
or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of March, 1999.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
EXHIBIT 7
---------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries
a member of the Federal Reserve System. at the close of business
December 31, 1998. published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Non-interest bearing balances and
currency and coin $ 3,951,273
Interest-bearing balances $ 4,134,162
Securities:
Held-to-maturity securities $ 932,468
Available-for-sale securities 4,279,246
Federal funds sold and Securities
purchased under agreements to resell 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income: 37,861,802
LESS Allowance for loan and lease
losses 619,791
LESS Allocated transfer risk
reserve 3,572
Loans and leases, net of unearned
income, allowance and reserve 37,238,439
Trading Assets 1,551,556
Premises and fixed assets (including
capitalized leases) 684,181
Other real estate owned 10,404
Investments in unconsolidated
subsidiaries and associated companies 196,032
Customers liability to this bank on
acceptances outstanding 895,160
Intangible assets 1,127,375
Other assets 1,915,742
-----------
Total assets $60,077,664
LIABILITIES
Deposits:
In domestic offices $27,020,578
Non-interest bearing 11,271,304
Interest-bearing 15,749,274
In foreign offices. Edge and
Agreement subsidiaries and IBFs $17,197,743
Non-interest bearing 103,007
Interest-bearing 17,094,736
Federal funds purchased and
Securities sold under agreements to
re-purchase 1,761,170
Demand notes issued to the U.S. Treasury 125,423
Trading liabilities 1,625,632
Other borrowed money:
With remaining maturity of one year or less 1,903,700
With remaining maturity of more than one year
through three years 0
With remaining maturity of more than three years 31,639
Bank's liability on acceptances executed and outstanding 900,390
Subordinated notes and debentures 1,308,000
Other liabilities 2,708,852
------------
Total liabilities 54,583,127
EQUITY CAPITAL
Common stock 1,135,284
Surplus 764,443
Undivided profits and capital
reserves 3,542,168
Net unrealized holding gains (losses)
on available-for-sale-securities 82,367
Cumulative foreign currency translation adjustments ( 29,725)
Total equity capital 5,494,537
--------------
Total liabilities and equity capital 60,077,664
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true to the best of
my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
