FORM 10-Q/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended September 24, 1995
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Commission file number 1-11257
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Checkpoint Systems, Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 22-1895850
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 Wolf Drive P.O. Box 188 Thorofare, New Jersey 08086
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(Address of principal executive offices) (Zip Code)
(609) 848-1800
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
As of December 12, 1995 there were 14,205,379 of the Common Stock
outstanding.
CHECKPOINT SYSTEMS, INC.
FORM 10-Q/A
INDEX
Page No.
-------
Item 6. Exhibits and Reports on Form 8-K 3
SIGNATURES 3
INDEX TO EXHIBITS 4
-2-
<PAGE>
PART II OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Indenture dated October 24, 1995 between
Checkpoint Systems, Inc. and Chemical Bank, as Trustee
and a Registration Rights Agreement dated as
of October 24, 1995.
(b) No reports on Form 8-K have been filed during the third
quarter of 1995.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
December 13, 1995
CHECKPOINT SYSTEMS, INC.
________________________
Steven G. Selfridge
Senior Vice President - Operations
and Chief Financial Officer
December 13, 1995
________________________
Mitchell T. Codkind
Vice President, Corporate Controller
and Chief Accounting Officer
-3-
INDEX TO EXHIBITS
-----------------
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
4(i) Indenture dated October 24, 1995
between Checkpoint Systems, Inc.
and Chemical Bank, as Trustee including
including Exhibits A and B.
4(ii) Form of 5-1/4% Convertible Subordinated
Debenture due 2005 (see Exhibit 4(i)).
4(iii) Registration Rights Agreement
dated as of October 24, 1995.
-4-
CHECKPOINT SYSTEMS, INC.,
Issuer,
and
CHEMICAL BANK,
Trustee
INDENTURE
Dated as of October 24, 1995
U.S.$120,000,000
5-1/4% Convertible Subordinated Debentures due 2005
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . .
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . .
SECTION 1.2. Incorporation by Reference of TIA . . . . . . . . .
SECTION 1.3. Rules of Construction . . . . . . . . . . . . . . .
ARTICLE II
THE SECURITIES . . . . . . . . . . . .
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . .
SECTION 2.2. Execution and Authentication. . . . . . . . . . . .
SECTION 2.3. Registrar and Paying Agent. . . . . . . . . . . . .
SECTION 2.4. Paying Agent to Hold Assets in Trust. . . . . . . .
SECTION 2.5. Securityholder Lists. . . . . . . . . . . . . . . .
SECTION 2.6. Transfer and Exchange; Restrictions on
Transfer. . . . . . . . . . . . . . . . . . . . . .
SECTION 2.7. Exchange. . . . . . . . . . . . . . . . . . . . . .
SECTION 2.8. Replacement Securities. . . . . . . . . . . . . . .
SECTION 2.9. Outstanding Securities. . . . . . . . . . . . . . .
SECTION 2.10. Treasury Securities . . . . . . . . . . . . . . . .
SECTION 2.11. Temporary Securities. . . . . . . . . . . . . . . .
SECTION 2.12. Cancellation. . . . . . . . . . . . . . . . .
SECTION 2.13. Payment.. . . . . . . . . . . . . . . . . . .
SECTION 2.14. Defaulted Interest. . . . . . . . . . . . . .
SECTION 2.15. Computation of Interest . . . . . . . . . . .
ARTICLE III
REDEMPTION . . . . . . . . . . . . .
SECTION 3.1. Right of Redemption . . . . . . . . . . . . . . . .
SECTION 3.2. Effect of Notice of Redemption. . . . . . . . . . .
SECTION 3.3. Deposit of Redemption Price . . . . . . . . . . . .
SECTION 3.4. Securities Redeemed in Part . . . . . . . . . . . .
ARTICLE IV
COVENANTS. . . . . . . . . . . . . .
SECTION 4.1. Payment of Securities . . . . . . . . . . . . . . .
SECTION 4.2. Maintenance of Office or Agency . . . . . . . . . .
SECTION 4.3. Corporate Existence . . . . . . . . . . . . . . . .
SECTION 4.4. Payment of Taxes and Other Claims . . . . . . . . .
SECTION 4.5. Maintenance of Properties and
Insurance . . . . . . . . . . . . . . . . . . . . .
SECTION 4.6. Compliance Certificate; Notice of
Default . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.7. Reports . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.8. Limitation on Status as Investment
Company . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.9. Waiver of Stay, Extension or
Usury Laws. . . . . . . . . . . . . . . . . . . . .
SECTION 4.10. Rule 144A Information Requirement.. . . . . . . . .
ARTICLE V
SUCCESSOR CORPORATION. . . . . . . . . . .
SECTION 5.1. Limitation on Merger, Sale or
Consolidation . . . . . . . . . . . . . . . . . . .
SECTION 5.2. Successor Corporation Substituted . . . . . . . . .
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . .
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . .
SECTION 6.2. Acceleration of Maturity Date;
Rescission and Annulment. . . . . . . . . . . . . .
SECTION 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . .
SECTION 6.4. Trustee May File Proofs of Claim. . . . . . . . . .
SECTION 6.5. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . . . . .
SECTION 6.6. Priorities. . . . . . . . . . . . . . . . . . . . .
SECTION 6.7. Limitation on Suits . . . . . . . . . . . . . . . .
SECTION 6.8. Unconditional Right of Holders to
Receive Principal, Premium, Interest
and Additional Amounts. . . . . . . . . . . . . . .
SECTION 6.9. Rights and Remedies Cumulative. . . . . . . . . . .
SECTION 6.10. Delay or Omission Not Waiver. . . . . . . . . . . .
SECTION 6.11. Control by Holders. . . . . . . . . . . . . . . . .
SECTION 6.12. Waiver of Past Default. . . . . . . . . . . . . . .
SECTION 6.13. Undertaking for Costs . . . . . . . . . . . . . . .
SECTION 6.14. Restoration of Rights and Remedies. . . . . . . . .
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . .
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . .
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . .
SECTION 7.3. Individual Rights of Trustee. . . . . . . . . . . .
SECTION 7.4. Trustee's Disclaimer. . . . . . . . . . . . . . . .
SECTION 7.5. Notice of Default . . . . . . . . . . . . . . . . .
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . .
SECTION 7.7. Compensation and Indemnity. . . . . . . . . . . . .
SECTION 7.8. Replacement of Trustee. . . . . . . . . . . . . . .
SECTION 7.9. Successor Trustee by Merger, Etc. . . . . . . . . .
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . .
SECTION 7.11. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . .
ARTICLE VIII
SATISFACTION AND DISCHARGE . . . . . . . . .
SECTION 8.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . .
SECTION 8.2. Repayment to the Company. . . . . . . . . . . . . .
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . .
SECTION 9.1. Supplemental Indentures Without
Consent of Holders. . . . . . . . . . . . . . . . .
SECTION 9.2. Amendments, Supplemental Indentures
and Waivers with Consent of Holders . . . . . . . .
SECTION 9.3. Compliance with TIA . . . . . . . . . . . . . . . .
SECTION 9.4. Revocation and Effect of Consents . . . . . . . . .
SECTION 9.5. Notation on or Exchange of Securities . . . . . . .
SECTION 9.6. Trustee to Sign Amendments, Etc.. . . . . . . . . .
ARTICLE X
MEETINGS. . . . . . . . . . . . . .
SECTION 10.1. Meetings and Votes of Holders.. . . . . . . . . . .
SECTION 10.2. Action by Holders . . . . . . . . . . . . . . . . .
<PAGE>
ARTICLE XI
AGENTS . . . . . . . . . . . . . .
SECTION 11.1. Offices, Resignation, Successors, Etc. of
Agents; Paying, Conversion and Transfer
Agencies . . . . . . . . . . . . . . . . . . .
ARTICLE XII
SUBORDINATION. . . . . . . . . . . . .
SECTION 12.1. Securities Subordinated to Senior Indebtedness. . .
SECTION 12.2. No Payment on Securities in Certain
Circumstances . . . . . . . . . . . . . . . . . . .
SECTION 12.3. Securities Subordinated to Prior Payment
of All Senior Indebtedness on
Dissolution, Liquidation or
Reorganization. . . . . . . . . . . . . . . . . . .
SECTION 12.4. Securityholders to Be Subrogated to
Rights of Holders of Senior Indebtedness. . . . . .
SECTION 12.5. Obligations of the Company
Unconditional . . . . . . . . . . . . . . . . . . .
SECTION 12.6. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice . . . . . . . .
SECTION 12.7. Application by Trustee of Assets
Deposited with It . . . . . . . . . . . . . . . . .
SECTION 12.8. Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness. . . . . . . . . . .
SECTION 12.9. Securityholders Authorize Trustee to
Effectuate Subordination of Securities. . . . . . .
SECTION 12.10. Right of Trustee to Hold Senior
Indebtedness. . . . . . . . . . . . . . . . . . . .
SECTION 12.11. Article XII Not to Prevent Events of
Default . . . . . . . . . . . . . . . . . . . . . .
SECTION 12.12. No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness. . . . . . . . . . .
ARTICLE XIII
CONVERSION OF SECURITIES. . . . . . . . . .
SECTION 13.1. Conversion Privilege. . . . . . . . . . . . . . . .
SECTION 13.2. Exercise of Conversion Privilege. . . . . . . . . .
SECTION 13.3. Fractional Interests. . . . . . . . . . . . . . . .
SECTION 13.4. Adjustment of Conversion Price. . . . . . . . . . .
SECTION 13.5. Notice of Certain Events. . . . . . . . . . . . . .
SECTION 13.6. Continuation of Conversion Privilege
in Case of Reclassification, Change,
Merger, Consolidation or Sale of
Assets . . . . . . . . . . . . . . . . . . . . . .
SECTION 13.7. Taxes on Conversion . . . . . . . . . . . . . . . .
SECTION 13.8. Company to Provide Stock. . . . . . . . . . . . . .
SECTION 13.9. Disclaimer of Responsibility for Certain Matters. .
SECTION 13.10. Return of Funds Deposited for
Redemption of Converted Securities. . . . . . . . .
ARTICLE XIV
MISCELLANEOUS. . . . . . . . . . . . .
SECTION 14.1. TIA Controls. . . . . . . . . . . . . . . . . . . .
SECTION 14.2. Notices . . . . . . . . . . . . . . . . . . . . . .
SECTION 14.3. Communications by Holders with Other
Holders . . . . . . . . . . . . . . . . . . . . . .
SECTION 14.4. Certificate and Opinion as to Conditions Precedent.
<PAGE>
SECTION 14.5. Statements Required in Certificate
or Opinion. . . . . . . . . . . . . . . . . . . . .
SECTION 14.6. Rules by Trustee, Paying Agent,
Registrar . . . . . . . . . . . . . . . . . . . . .
SECTION 14.7. Legal Holidays. . . . . . . . . . . . . . . . . . .
SECTION 14.8. Taxes.. . . . . . . . . . . . . . . . . . . . . . .
SECTION 14.9. Governing Law . . . . . . . . . . . . . . . . . . .
SECTION 14.10. Agent for Service of Process. . . . . . . . . . . .
SECTION 14.11. No Adverse Interpretation of Other
Agreements. . . . . . . . . . . . . . . . . . . . .
SECTION 14.12. No Recourse Against Others. . . . . . . . . . . . .
SECTION 14.13. Successors. . . . . . . . . . . . . . . . . . . . .
SECTION 14.14. Duplicate Originals . . . . . . . . . . . . . . . .
SECTION 14.15. Severability. . . . . . . . . . . . . . . . . . . .
SECTION 14.16. Table of Contents, Headings, Etc. . . . . . . . . .
SECTION 14.17. Qualification of Indenture. . . . . . . . . . . . .
SECTION 14.18. Registration Rights . . . . . . . . . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A - FORM OF SECURITY . . . . . . . . . . . . . . . . . . .
EXHIBIT B - FORM OF REGULATION S GLOBAL SECURITY . . . . . . . . .
EXHIBIT C - FORM OF CERTIFICATE TO BE GIVEN BY THE
EUROCLEAR OPERATOR AND CEDEL BANK, S.A. . . . . . . .
EXHIBIT D - FORM OF CERTIFICATE OF BENEFICIAL
OWNERSHIP FOR BEARER SECURITIES. . . . . . . . . . . .
EXHIBIT E - FORM OF CERTIFICATE OF BENEFICIAL
OWNERSHIP FOR REGISTERED SECURITIES. . . . . . . . . .
EXHIBIT F - FORM OF CERTIFICATE TO BE GIVEN BY THE
EUROCLEAR OPERATOR AND CEDEL BANK, S.A.. . . . . . . .
EXHIBIT G - FORM OF TRANSFEREE LETTER. . . . . . . . . . . . . . .
<PAGE>
INDENTURE, dated as of October 24, 1995, between
CHECKPOINT SYSTEMS, INC., a Pennsylvania corporation (the
"Company"), and CHEMICAL BANK, a New York corporation, as
Trustee.
Each party hereto agrees as follows for the bene-
fit of each other party and for the equal and ratable bene-
fit of the Holders of the Company's 5-1/4% Convertible Subordi-
nated Debentures due 2005 and the Coupons:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acceleration Notice" shall have the meaning
specified in Section 6.2.
"Accredited Investor Securities" shall have the
meaning specified in Section 2.1(b).
"Additional Amounts" shall have the meaning spe-
cified in Section 2 of the form of Registered Security and
Bearer Security attached hereto as Exhibit A.
"Affiliate" means (i) any person directly or indi-
rectly controlling or controlled by or under direct or
indirect common control with the Company, (ii) any spouse,
immediate family member, or other relative who has the same
principal residence of any person described in clause (i)
above, and (iii) any trust in which any person described in
clause (i) or (ii) above has a beneficial interest. For
purposes of this definition, the term "control" means the
power to direct the management and policies of a person,
directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or
otherwise.
"Agent" shall have the meaning set forth in Sec-
tion 2.3.
"Authorized Newspaper" means a leading newspaper,
in an official language of the country of publication or in
the English language, customarily published on each Business
Day whether or not published on Saturdays, Sundays or holi-
days, and of general circulation in the place in connection
with which the term is used or in the financial community of
such place. If by reason of the temporary or permanent
suspension of publication of any newspaper or by reason of
any other cause it shall be impossible to make publication
of such notice in an Authorized Newspaper as herein provid-
ed, then such publication or other notice in lieu thereof as
shall be made by the Trustee shall constitute sufficient
publication of such notice, if such publication or other
notice shall, so far as may be possible, approximate the
terms and conditions of the publication in lieu of which it
is given.
<PAGE>
"Bankruptcy Law" means Title 11, U.S. Code, or any
similar Federal, state or foreign law for the relief of
debtors.
"Bearer Securities" shall have the meaning set
forth in Section 2.1(c).
"beneficial owner" for purposes of the definition
of Change of Control has the meaning attributed to it in
Rules 13d-3 and 13d-5 under the Exchange Act (as in effect
on the Closing Date), whether or not applicable, except that
a "person" shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after
the passage of time or upon the occurrence of certain
events.
"Board of Directors" means, with respect to any
person, the Board of Directors of such person or any commit-
tee of the Board of Directors of such person authorized,
with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"Board Resolution" means, with respect to any
person, a copy of a resolution certified by the Secretary or
an Assistant Secretary of such person to have been duly
adopted by the Board of Directors thereof and to be in full
force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means, with respect to any act to
be performed hereunder, each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions in the place where such act is to occur are
authorized or obligated by applicable law, regulation or
executive order to close.
"Capitalized Lease Obligation" means rental obli-
gations under a lease that are required to be capitalized
for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obliga-
tions shall be the capitalized amount of such obligations,
as determined in accordance with GAAP.
"Capital Stock" means, with respect to any corpo-
ration, any and all shares, interests, rights to purchase
(other than convertible or exchangeable Indebtedness), war-
rants, options, participations or other equivalents of or
interests (however designated) in stock issued by that
corporation.
"Cash" means such coin or currency of the United
States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
<PAGE>
"Cedel" shall have the meaning specified in Sec-
tion 2.7(b).
"Change of Control" means (i) any merger or con-
solidation of the Company with or into any person or any
sale, transfer or other conveyance, whether direct or indi-
rect, of all or substantially all of the assets of the
Company, on a consolidated basis, in one transaction or a
series of related transactions, if, immediately after giving
effect to such transaction, any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act, whether or not applicable) is or becomes
the "beneficial owner," directly or indirectly, of more than
50% of the total voting power in the aggregate normally
entitled to vote in the election of directors, managers, or
trustees, as applicable, of the transferee or surviving
entity, (ii) any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable) is or becomes the "benefi-
cial owner," directly or indirectly, of more than 50% of the
total voting power in the aggregate normally entitled to
vote in the election of directors of the Company, or (iii)
during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Company
(together with any new directors whose election by such
Board or whose nomination for election by the shareholders
of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at
the beginning of such period or whose election or nomination
for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of
the Company then in office.
"Change of Control Notice Date" shall have the
meaning specified in Section 3.1.
"Closing Date" shall have the meaning specified in
Section 2.7(b).
"Closing Price" means for any day the last report-
ed sales price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New
York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on such Exchange, on the principal
national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted
to trading on any national securities exchange, the closing
sale price quoted on the Nasdaq Stock Market's National
Market, or if not so quoted, as determined by the Company.
"Code" means the Internal Revenue Code of 1986, as
amended.
<PAGE>
"Common Depositary" shall have the meaning speci-
fied in Section 2.7(b).
"Common Stock" means the Company's common stock,
par value $.10 per share, or as such stock may be reconsti-
tuted from time to time.
"Company" means the party named as such in this
Indenture until a successor replaces it pursuant to the
Indenture, and thereafter means such successor.
"Conversion Agent" shall have the meaning speci-
fied in Section 2.3.
"Conversion Price" shall have the meaning speci-
fied in Section 13.1.
"Conversion Shares" shall have the meaning specif-
ied in Section 13.1.
"Coupon" means any interest coupon appertaining to
any security.
"Current Market Price" means, on any date, the
average of the Closing Prices for the 15 consecutive trading
days upon which the principal trading market for the Common
Stock is open commencing 25 trading days before the day in
question.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bank-
ruptcy Law.
"Default" means any event or condition that is, or
after notice or passage of time or both would be, an Event
of Default.
Defaulted Interest" shall have the meaning speci-
fied in Section 2.14.
"Depositary" means, with respect to the Securities
issuable or issued in whole or in part in global form, the
person specified in Section 2.3 as the Depositary with re-
spect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provi-
sion of this Indenture, and, thereafter, "Depositary" shall
mean or include such successor.
<PAGE>
"Designated Senior Indebtedness" means (i) the
Indebtedness outstanding under (x) the Second Amended and
Restated Loan and Agency Agreement among First Fidelity
Bank, National Association, as Agent, the banks party there-
to and the Company (including but not limited to the Exist-
ing Term Indebtedness as defined therein), (y) the Note
Agreement dated as of March 1, 1994, and as amended as of
January 15, 1995, pursuant to which the Company issued its
8.27% Series A Senior Notes due 2002 and (z) the Terms
Agreement dated as of January 15, 1995, pursuant to which
the Company issued its 9.35% Series B Senior Notes due 2003
and (ii) any other Senior Indebtedness having a principal
amount of at least $5.0 million that is designated as "De-
signated Senior Indebtedness" by written notice from the
Company to the Trustee.
"Disqualified Capital Stock" means (a) except as
set forth in (b), with respect to any person, Capital Stock
of such person that, by its terms or by the terms of any
security into which it is convertible, exercisable or ex-
changeable, is, or upon the happening of an event or the
passage of time would be, required to be redeemed or repur-
chased (including at the option of the holder thereof) by
such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Securities and (b)
with respect to any Subsidiary of such person (including
with respect to any Subsidiary of the Company), any Capital
Stock other than any common stock with no preference, privi-
leges, or redemption or repayment provisions.
"DTC" shall have the meaning specified in Section
2.3.
"Euroclear Operator" shall have the meaning speci-
fied in Section 2.7(b).
"Event of Default" shall have the meaning speci-
fied in Section 6.1.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promul-
gated by the SEC thereunder.
"Exchange Date" shall have the meaning specified
in Section 2.7(d).
<PAGE>
"GAAP" means United States generally accepted ac-
counting principles set forth in the opinions and pronounce-
ments of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board
("FASB") or in such other statements by such other entity as
approved by a significant segment of the accounting profes-
sion which are in effect in the United States; provided,
however, that for purposes of determining compliance with
covenants in the Indenture, "GAAP" means such generally ac-
cepted accounting principles which are in effect as of the
Issue Date.
"Holder" or "Securityholder" means, with respect
to a Registered Security, the person in whose name a Regis-
tered Security is registered on the Registrar's books and,
with respect to a Bearer Security, the bearer of such Bearer
Security and, with respect to a Coupon, the bearer thereof.
"Holder Redemption Date" means a date not less
than 30 nor more than 60 days after a Change of Control
Notice Date (except as otherwise required by law).
"Indebtedness" of any person means, without dupli-
cation, (a) all liabilities and obligations, contingent or
otherwise, of any such person, (i) in respect of borrowed
money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion
thereof), (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) representing the balance deferred
and unpaid of the purchase price of any property or servic-
es, except such as would constitute trade payables to trade
creditors in the ordinary course of business that are not
more than ninety (90) days past their original due date,
(iv) evidenced by bankers' acceptances or similar instru-
ments issued or accepted by banks, (v) for the payment of
money relating to a Capitalized Lease Obligation, or (vi)
evidenced by a letter of credit or a reimbursement obliga-
tion of such person with respect to any letter of credit;
(b) all net obligations of such person under Interest Swap
and Hedging Obligations; (c) all liabilities of others of
the kind described in the preceding clause (a) or (b) that
such person has guaranteed or that is otherwise its legal
liability and all obligations to purchase, redeem or acquire
any Capital Stock; and (d) any and all deferrals, renewals,
extensions, refinancings, refunding (whether direct or
indirect) of any liability of the kind described in any of
the preceding clauses (a), (b) or (c), or this clause (d),
whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or
supplemented from time to time in accordance with the terms
hereof.
"Interest Payment Date" means the stated due date
of an installment of interest on the Securities.
"Interest Record Date" means an Interest Record
Date specified in the Securities whether or not such Inter-
est Record Date is a Business Day.
"Interest Swap and Hedging Obligation" means any
obligation of any person pursuant to any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate exchange agreement, currency ex-
change agreement or any other agreement or arrangement
designed to protect against fluctuations in interest rates
or currency values, including, without limitation, any
arrangement whereby, directly or indirectly, such person is
entitled to receive from time to time periodic payments
calculated by applying either a fixed or floating rate of
interest on a stated notional amount in exchange for peri-
odic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional
amount.
"Junior Security" of any Person means any Quali-
fied Capital Stock and any Indebtedness of such Person that
is (i) subordinated in right of payment to the Securities
and has no scheduled installment of principal due, by re-
demption, sinking fund payment or otherwise, on or prior to
the Stated Maturity of the Securities and (ii) subordinated
in right of payment to all Senior Indebtedness at least to
the same extent as the Securities.
"Lien" means any mortgage, lien, pledge, charge,
security interest or other encumbrance of any kind, whether
or not filed, recorded or otherwise perfected under applica-
ble law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a
security interest and any option or other agreement to give
any security interest).
"London Office" shall have the meaning specified
in Section 2.3.
<PAGE>
"Managers" means NatWest Securities Limited,
Deutsche Morgan Grenfell/C.J. Lawrence Inc., Paine Webber
International (U.K.) Ltd., H.D. Brous & Co., Inc. and the
subscribers named on Schedule I to the Subscription Agree-
ment.
"Notice of Default" shall have the meaning speci-
fied in Section 6.1(3).
"Obligations" means any principal, premium, inter-
est, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documenta-
tion governing any Senior Indebtedness.
"Officer" means, with respect to the Company, the
Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Controller,
or the Secretary of the Company.
"Officers' Certificate" means, with respect to the
Company, a certificate signed by two Officers or by an
Officer and an Assistant Secretary of the Company and other-
wise complying with the requirements of Sections 14.4 and
14.5, if applicable.
"Opinion of Counsel" means a written opinion from
legal counsel who is reasonably acceptable to the Trustee
and which complies with the requirements of Sections 14.4
and 14.5, if applicable.
"Paying Agent" shall have the meaning specified in
Section 2.3.
"Payment Blockage Period" shall have the meaning
specified in Section 12.2.
"Payment Default" shall have the meaning specified
in Section 12.2.
"Payment Notice" shall have the meaning specified
in Section 12.2.
"Person" or "person" means any corporation, indi-
vidual, limited liability company, joint stock company,
joint venture, partnership, unincorporated association,
governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other entity.
"principal" of any Indebtedness means the princi-
pal of such Indebtedness plus, without duplication, any
applicable premium, if any, on such Indebtedness.
"Principal Corporate Trust Office" shall have the
meaning specified in Section 2.3.
<PAGE>
"Property" means any right or interest in or to
property or assets of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible.
"QIBs" shall have the meaning specified in Section
2.1(b).
"Qualified Capital Stock" means any Capital Stock
of the Company that is not Disqualified Capital Stock.
"Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such re-
demption pursuant to Article III of this Indenture and
Section 3 in the form of Security.
"Redemption Price," when used with respect to any
Security to be redeemed, means the redemption price for such
redemption pursuant to Section 3 in the form of Security,
which shall include, without duplication, in each case,
accrued and unpaid interest and Additional Amounts, if any,
to and including the Redemption Date.
"Registered Accredited Investor Securities" shall
have the meaning specified in Section 2.1(e).
"Registered Regulation S Securities" shall have
the meaning specified in Section 2.1(c).
"Registered Securities" shall have the meaning
specified in Section 2.1(c).
"Registrar" shall have the meaning specified in
Section 2.3.
"Registration Rights Agreement" means the Regis-
tration Rights Agreement, dated the date hereof, by and
among the Company and the persons listed on Schedule I
thereto, as such agreement may be amended, modified or sup-
plemented from time to time in accordance with the terms
thereof.
"Regulation S Global Security" shall have the
meaning specified in Section 2.1(c).
"Resale Restriction Termination Date" shall have
the meaning specified in Section 2.6(i).
"Restricted Common Stock" shall have the meaning
specified in Section 13.6(b).
"Restricted Security" shall have the meaning
specified in Section 2.1(f).
"Rule 144A Global Security" shall have the meaning
specified in Section 2.1(d).
<PAGE>
"Rule 144A Securities" shall have the meaning
specified in Section 2.1(b).
"SEC" means the Securities and Exchange Commis-
sion.
"Securities" means, collectively, the 5-14/% Convert-
ible Subordinated Debentures due 2005, as supplemented from
time to time in accordance with the terms hereof, issued
under this Indenture.
"Securities Act" means the Securities Act of 1933,
as amended, and the rules and regulations of the SEC promul-
gated thereunder.
"Securities Custodian" means the Trustee, as
custodian with respect to the Securities in global form, or
any successor entity thereto.
"Security Register" shall have the meaning speci-
fied in Section 2.3.
"Senior Indebtedness" of the Company means any In-
debtedness of the Company, whether outstanding on the date
of the Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company, unless
the instrument creating or evidencing such Indebtedness
provides that such Indebtedness is not senior or superior,
in right of payment, to the Securities or to other Indebted-
ness which is pari passu with, or subordinated to, the
Securities; provided, that in no event shall Senior Indebt-
edness include (a) Indebtedness of the Company owed or owing
to any Subsidiary of the Company or any officer, director or
employee of the Company or any Subsidiary of the Company,
(b) Indebtedness to trade creditors, or (c) any liability
for taxes owed or owing by the Company.
"Significant Subsidiary" shall have the meaning
assigned to that term under Regulation S-X promulgated by
the SEC, as in effect on the date of this Indenture.
"Stated Maturity," when used with respect to any
Security, means November 1, 2005.
"Subscription Agreement" means that certain Sub-
scription Agreement, dated October 17, 1995, by and among
the Company and the several Managers named in Schedule I
thereto, as such agreement may be amended, modified or sup-
plemented from time to time in accordance with the terms
thereof.
<PAGE>
"Subsidiary" with respect to any person, means (i)
a corporation a majority of whose Capital Stock with voting
power normally entitled to vote in the election of directors
is at the time, directly or indirectly, owned by such per-
son, by such person and one or more Subsidiaries of such
person or by one or more Subsidiaries of such person, (ii) a
partnership in which such person or a Subsidiary of such
person is, at the time, a general partner, or (iii) any
other person (other than a corporation) in which such per-
son, one or more Subsidiaries of such person, or such person
and one or more Subsidiaries of such person, directly or
indirectly, at the date of determination thereof has at
least majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15
U.S. Code Sec 77aaa-77bbbb) as in effect on the date of the
execution of this Indenture.
"Trading Day" means each Monday, Tuesday, Wednes-
day, Thursday and Friday, other than any day on which secu-
rities are not traded on the New York Stock Exchange (or, if
the Common Stock is not admitted to trading thereon, on the
principal national securities exchange on which the Common
Stock is listed or admitted to trading).
"Trustee" means the party named as such in this
Indenture until a successor replaces it in accordance with
the provisions of this Indenture and thereafter means such
successor.
"Trust Officer" means any officer within the
corporate trustee administration department (or any succes-
sor group) of the Trustee or any other officer of the Trust-
ee customarily performing functions similar to those per-
formed by the Persons who at that time shall be such offi-
cers, and also means, with respect to a particular corporate
trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"U.S. Government Obligations" means direct non-
callable obligations of, or noncallable obligations guaran-
teed by, the United States of America for the payment of
which obligation or guarantee the full faith and credit of
the United States of America is pledged.
SECTION 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of
the TIA, such 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.
<PAGE>
"indenture securityholder" means a Holder or 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 other obligor on the Securities.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule and not otherwise defined
herein have the meanings assigned to them thereby.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plu-
ral, and words in the plural include the singular;
(5) provisions apply to successive events
and transactions;
(6) "herein," "hereof" and other words of
similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(7) references to Sections or Articles means
reference to such Section or Article in this Indenture,
unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.
(a) The Company has, by a Subscription
Agreement, dated October 17, 1995 (the "Subscription Agree-
ment"), by and among the Company and the several managers
named in Schedule I thereto (the "Managers"), agreed to
issue and sell to the Managers up to U.S.$120,000,000 aggre-
gate principal amount of its 5-1/4% Convertible Subordinated
Debentures due 2005.
<PAGE>
(b) Pursuant to the Subscription Agreement,
the Managers may resell the Securities to (i) persons who
are not "U.S. Persons" (as such term is defined in Regula-
tion S promulgated by the SEC pursuant to the Securities
Act) in transactions that meet the requirements of Regula-
tion S, (ii) "qualified institutional buyers" (as such term
is defined in Rule 144A promulgated by the SEC pursuant to
the Securities Act and hereinafter referred to as "QIBs")
in reliance on Rule 144A (the Securities that are resold by
the Managers pursuant to Rule 144A being hereinafter re-
ferred to as the "Rule 144A Securities"), and (iii) institu-
tional "accredited investors" (within the meaning of Rule
501(a)(1), (2), (3) or (7) promulgated by the SEC pursuant
to the Securities Act) (the Securities that are resold by
the Managers to institutional "accredited investors" being
hereinafter referred to as the "Accredited Investor Securi-
ties").
(c) The Securities will initially be issued
in the form of a temporary global debenture in bearer form
without coupons in the aggregate principal amount of the
entire issue of Securities less the aggregate principal
amount of the Rule 144A Securities and Accredited Investor
Securities concurrently issued, substantially in the form of
Exhibit B hereto (the "Regulation S Global Security"). As
hereinafter provided, the Regulation S Global Security may
subsequently be exchanged for Securities in printed defini-
tive form either as (i) bearer Securities ("Bearer Securi-
ties") in denominations of U.S.$1,000 and U.S.$10,000 and
with interest Coupons attached thereto, representing the
semi-annual interest payable thereon, or (ii) fully regis-
tered Securities ("Registered Regulation S Securities") in
denominations of U.S.$1,000 and integral multiples thereof.
Bearer Securities shall be substantially in the form of
Exhibit A hereto, including the Coupons set forth therein,
and Registered Regulation S Securities shall be substantial-
ly in the form of Exhibit A hereto, in each case excluding
the information called for by footnotes 1 and 2 and exclud-
ing the additional schedule referred to in footnote 3 there-
to. The Securities which are not Bearer Securities or the
Regulation S Global Security are hereinafter collectively
referred to as the "Registered Securities."
(d) The Rule 144A Securities will initially
be issued in the form of a global Security in the aggregate
principal amount of the Rule 144A Securities, which Security
shall be in substantially the form of Exhibit A hereto,
including the paragraphs referred to in footnotes 1 and 2
and the additional schedule referred to in footnote 3 there-
to, and is hereinafter referred to as the "Rule 144A Global
Security."
<PAGE>
(e) The Accredited Investor Securities will
initially be issued in fully registered form in denomina-
tions of U.S.$1,000 and integral multiples thereof, which
Securities shall be in substantially the form of Exhibit A
hereto, excluding the information called for by footnote 1
thereto and the additional schedule referred to in footnote
3 thereto but including the information called for by foot-
note 2 thereto, and are hereinafter collectively referred to
as "Registered Accredited Investor Securities."
(f) During the period beginning on the
Closing Date and ending on the date which is three years
after the Closing Date, all Rule 144A Securities and all
Accredited Investor Securities, and all Securities issued
upon registration of transfer of or in exchange for such
Securities, shall be "Restricted Securities" and shall be
subject to the restrictions on transfer in Section 2.6 here-
of; provided, however, that the term "Restricted Securities"
shall not include (i) Registered Securities which are issued
upon transfer of or in exchange for either Bearer Securities
or Registered Regulation S Securities or (ii) Registered
Securities as to which such restrictions on transfer have
been terminated in accordance with Section 2.6(i) hereof.
All Restricted Securities shall bear the legend required by
Section 2.6(h) hereof.
(g) The Registered Securities, the Bearer
Securities and the Regulation S Global Security shall con-
tain such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the
officer of the Company executing such Securities, as evi-
denced by his execution of such Securities.
(h) The Company in issuing the Securities
shall use CUSIP numbers, and the Trustee may use such CUSIP
numbers in any notice of redemption with respect to the
Securities. The Company shall obtain one CUSIP number for
the Rule 144A Securities and one for the Registered Securi-
ties that are not Restricted Securities. In addition, the
Company shall obtain an ISIN number and a Common Code for
the Regulation S Global Security, the Bearer Securities and
the Registered Regulation S Securities.
<PAGE>
(ii) In compliance with United States tax
laws and regulations, Bearer Securities may not be offered
or sold during the 40-day period beginning on the Closing
Date, or at any time if part of a Manager's unsold allot-
ment, to a person who is within the United States or to a
United States person other than (a) foreign branches of
United States financial institutions if such institutions
agree in writing to comply with the requirements of Section
165(j)(3)(A), (B), or (C) of the Code, and the regulations
thereunder, (b) United States offices of exempt distribu-
tors, or (c) United States offices of international organi-
zations or foreign central banks. United States tax laws
and regulations also require that Bearer Securities not be
delivered within the United States.
(j) The Securities and the Trustee's certif-
icate of authentication, in respect thereof, shall be sub-
stantially in the forms of Exhibits A and B hereto, as
applicable, which Exhibits are part of this Indenture. The
Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company
shall approve the forms of the Securities and any notation,
legend or endorsement on them. Any such notations, legends
or endorsements not contained in the forms of Security at-
tached as Exhibits A and B hereto shall be delivered in
writing to the Trustee. Each Security shall be dated the
date of its authentication, except that Bearer Securities
shall be dated October 24, 1995.
(k) The terms and provisions contained in
the forms of Securities shall constitute, and are hereby ex-
pressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign
and one Officer shall attest to, the Security and each
Coupon for the Company by manual or facsimile signature.
The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security or
a related Coupon was an Officer at the time of such execu-
tion but no longer holds that office at the time the Trustee
authenticates the Security, the Security and such Coupon
shall be valid nevertheless and the Company shall neverthe-
less be bound by the terms of the Securities, the Coupons
and this Indenture.
A Security and the related Coupons shall not be
valid until an authorized officer of the Trustee manually
signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Securi-
ty has been authenticated pursuant to the terms of this
Indenture.
<PAGE>
The Trustee shall authenticate the Securities for
original issue in the aggregate principal amount of up to
U.S.$120,000,000 upon a written order of the Company in the
form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticat-
ed. The aggregate principal amount of Securities outstand-
ing at any time may not exceed U.S.$120,000,000, except as
provided in Section 2.7. Upon the written order of the
Company in the form of an Officers' Certificate, the Trustee
shall authenticate Securities in substitution of Securities
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities.
Unless otherwise provided in the appointment, an authenti-
cating agent may authenticate Securities whenever the Trust-
ee may do so. Each reference in this Indenture to authenti-
cation by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to
deal with the Company, any Affiliate of the Company, or any
of their respective Subsidiaries.
SECTION 2.3. Registrar and Paying Agent.
The Company hereby appoints Chemical Bank, at
present having its principal corporate trust office at
450 West 33rd Street, New York, New York 10001 (the "Princi-
pal Corporate Trust Office"), as its Trustee in respect of
the Securities upon the terms and subject to the conditions
herein set forth (Chemical Bank and its successor or suc-
cessors as such Trustee qualified and appointed in accor-
dance with Section 7.8 hereof are herein called the "Trust-
ee"). The Trustee shall have the powers and authority
granted to and conferred upon it herein and in the Secu-
rities, and such further powers and authority, acceptable to
it, to act on behalf of the Company as the Company may
hereafter grant to or confer upon it in writing.
The Company hereby appoints the Principal Corpo-
rate Trust Office of Chemical Bank and the London office of
Chemical Bank located at 125 London Wall, London EC2Y 5AJ,
England (the "London Office"), as its Paying Agent in re-
spect of the Securities upon the terms and subject to the
conditions herein set forth (Chemical Bank and its successor
or successors as such paying agent qualified and appointed
in accordance with Section 11.1 hereof are herein called the
"Paying Agent"). The Paying Agent shall have the powers and
authority granted to and conferred upon it herein and in the
Securities, and such further powers and authority, accept-
able to it, to act on behalf of the Company as the Company
may hereafter grant to or confer upon it in writing. The
Company may have one or more additional Paying Agents and
the term "Paying Agent" includes any additional Paying
Agent. As used herein, "paying agencies" shall mean paying
agencies maintained by the Company as provided in Section
4.2 hereof.
<PAGE>
The Company hereby appoints the Principal Corpo-
rate Trust Office of Chemical Bank and the London Office of
Chemical Bank as its Conversion Agent in respect of the
Securities upon the terms and subject to the conditions
herein set forth (Chemical Bank and its successor or suc-
cessors as such conversion agent qualified and appointed in
accordance with Section 11.1 hereof are herein called the
"Conversion Agent," and the Registrar, the Paying Agent, the
Conversion Agent, the Transfer Agents (as defined in Section
4.2 hereof) and the Trustee are sometimes herein referred to
severally as an "Agent" and, collectively, as the "Agents").
The Conversion Agent shall have the powers and authority
granted to and conferred upon it herein and in the Securi-
ties, and such further powers and authority, acceptable to
it, to act on behalf of the Company as the Company may
hereafter grant to or confer upon it in writing. As used
herein, "conversion agencies" shall mean conversion agencies
maintained by the Company as provided in Section 4.2 hereof.
The Company shall cause to be kept at the Princi-
pal Corporate Trust Office of the Trustee a register (the
register maintained in such office (which office shall be
located in the Borough of Manhattan, The City of New York)
being herein referred to as the "Security Register") in
which, subject to such reasonable regulations as the Trustee
may prescribe, the Company shall provide for the registra-
tion of Registered Securities and of transfers of Registered
Securities ("Registrar"). The Trustee is hereby appointed
Registrar for the purpose of registering Registered Securi-
ties and transfers of Registered Securities as herein pro-
vided. The Company may have one or more co-Registrars.
The Company shall enter into an appropriate writ-
ten agency agreement with any Agent not a party to this
Indenture, which agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and
address of any such Agent. If the Company fails to maintain
a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints The Depository
Trust Company ("DTC") to act as Depositary with respect to
the Rule 144A Global Securities.
The Company initially appoints the Trustee to act
as Securities Custodian with respect to the Rule 144A Global
Securities.
<PAGE>
SECTION 2.4. Paying Agent to Hold Assets in
Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of Holders or the Trust-
ee all assets held by the Paying Agent for the payment of
principal of, premium, if any, interest on or Additional
Amounts with respect to, the Securities (whether such assets
have been distributed to it by the Company or any other
obligor on the Securities), and shall notify the Trustee in
writing of any Default in making any such payment. The
Company at any time may require a Paying Agent to distribute
all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent (if other than the Company or
an Affiliate of the Company) shall have no further liability
for such assets.
SECTION 2.5. 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 Holders of Registered
Securities. If the Trustee is not the Registrar, the Compa-
ny shall furnish to the Trustee on or before the third
Business Day preceding each Interest Payment Date and at
such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee reason-
ably may require of the names and addresses of Holders of
Registered Securities.
SECTION 2.6. Transfer and Exchange; Restrictions
on Transfer.
(a) Upon surrender for registration of
transfer of any Registered Security at any office or agency
designated for such purpose by the Company pursuant to
Section 4.2 hereof, the Company shall execute, and the
Trustee shall authenticate, register and deliver, in the
name of the designated transferee or transferees, one or
more new Registered Securities of any authorized denomina-
tions and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Inden-
ture; provided, however, that, with respect to any Regis-
tered Security that is a Restricted Security, the Trustee
shall not register the transfer of such Security unless the
conditions in Section 2.6(b) hereof shall have been satis-
fied. The Holder of each Restricted Security, by such
Holder's acceptance thereof, agrees to be bound by the
transfer restrictions set forth herein and in the legend on
such Restricted Security.
<PAGE>
(b) Whenever any Restricted Security is
presented or surrendered for registration of transfer or
exchange for a Registered Security registered in a name
other than that of the Holder, no registration of transfer
or exchange shall be made unless:
(i) The registered holder presenting such
Restricted Security for transfer shall have certified
to the Trustee in writing that such registered holder
is transferring such Restricted Security to a "quali-
fied institutional buyer" (as defined in Rule 144A
under the Securities Act) in compliance with the exemp-
tion from registration under the Securities Act provid-
ed by Rule 144A thereunder (or a successor provision);
(ii) The registered holder presenting such
Restricted Security for transfer shall have certified
to the Trustee in writing that the registered holder is
transferring such Restricted Security outside the Unit-
ed States in a transaction meeting the requirements of
Rule 904 of Regulation S under the Securities Act;
(iii) (A) The registered holder presenting
such Restricted Security for transfer shall have certi-
fied to the Trustee in writing that such registered
holder is transferring such Restricted Security to an
institutional "accredited investor" (within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) in a transaction not involving any general solici-
tation or general advertising; and (B) a broker or
dealer registered under Section 15 of the Exchange Act
shall have certified to the Trustee in writing that:
(x) each person who will become a beneficial owner of
the Restricted Security upon transfer is an institu-
tional "accredited investor" (as such term is defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act); (y) no general solicitation or general advertis-
ing was made or used by such broker or dealer in con-
nection with the offer and sale of such Restricted
Security to such person(s); and (z) such institutional
accredited investor has been informed that the Securi-
ties have not been registered under the Securities Act
and are subject to the restrictions on transfer set
forth in the Securities and this Indenture;
(iv) The registered holder presenting such
Restricted Security for transfer shall have certified
to the Trustee in writing that the registered holder is
transferring the Registered Security to the Company;
or
<PAGE>
(v) The Trustee has received transfer docu-
mentation indicating, and a written opinion of counsel
acceptable in form and substance to the Company, that
the transfer is being made pursuant to another avail-
able exemption from, or a transaction not otherwise
subject to, the registration requirements of the Secu-
rities Act.
For purposes of this Section 2.6(b), any
such certification to the Trustee in writing shall be in the
form of the Transfer Notice set forth on the reverse of such
Security. In the case of a transfer pursuant to the fore-
going clauses (ii), (iii) or (v) above, the Company may
require that the registered holder deliver an opinion of
counsel, certifications or other information acceptable to
it in form and substance. In addition, in the case of a
transfer pursuant to the foregoing clause (iii) above, the
transferor shall be required to deliver a letter from the
transferee substantially in the form of Exhibit G hereto.
(c) Bearer Securities may, at the option of
the holder thereof, be exchanged for an equal aggregate
principal amount of Registered Regulation S Securities in
denominations of $1,000 and integral multiples thereof
without Coupons and/or Bearer Securities of authorized
denominations, upon surrender of the Bearer Securities to be
exchanged at any office or agency outside the United States
designated for such purpose by the Company pursuant to
Section 4.2 hereof, with all unmatured Coupons and all ma-
tured Coupons in default thereto appertaining. If such
Holder is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such ex-
change may be effected if the Bearer Securities are accompa-
nied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing Coupon or
Coupons or the surrender of such missing Coupon or Coupons
may be waived by the Company if there be furnished to it and
the Trustee such security or indemnity as it may require to
save it, the Trustee, the Paying Agent and any paying agency
harmless. If thereafter the Holder of such Security shall
surrender to any paying agency any such missing Coupon in
respect of which such a payment shall have been made, such
holder shall be entitled to receive the amount of such
payment from the Company; provided, however, that, except as
otherwise provided in the form of Bearer Security set forth
in Exhibit A hereto, interest represented by Coupons shall
be payable only upon presentation and surrender of those
Coupons outside of the United States, its territories and
its possessions. Bearer Securities and Coupons are trans-
ferable upon delivery.
<PAGE>
(d) Registered Securities may, at the option
of the holder thereof, be exchanged for Registered Securi-
ties of any other authorized denominations and of a like
aggregate principal amount, upon surrender of the Registered
Securities to be exchanged at any office or agency designat-
ed for such purpose by the Company pursuant to Section 4.2
hereof. Registered Securities shall not be exchangeable for
Bearer Securities. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered
Securities which the holder making the exchange is entitled
to receive. If the Registered Security so surrendered for
exchange is a Registered Accredited Investor Security and
the Holder thereof requests in writing that such Registered
Accredited Investor Security be exchanged for an interest in
the Rule 144A Global Security, such Registered Accredited
Investor Security will be exchangeable into an equal aggre-
gate principal amount of beneficial interests in the Rule
144A Global Security; provided, however, that, if such
Registered Accredited Investor Security is a Restricted
Security, such exchange may only be made if such holder
certifies to the Trustee in writing that such holder is a
QIB by completing the Transfer Notice on the reverse of such
Security. Upon any exchange as provided in the immediately
preceding sentence, the Trustee shall cancel such Registered
Accredited Investor Security and cause, or direct any custo-
dian for the Rule 144A Global Security to cause, in accor-
dance with the standing instructions and procedures existing
between the Depositary and any such custodian, the aggregate
principal amount of Securities represented by the Rule 144A
Global Security to be increased accordingly. If no Rule
144A Global Securities are then outstanding, the Company
shall issue and the Trustee shall authenticate a new Rule
144A Global Security in the appropriate principal amount.
(e) Any person having a beneficial interest
in a Rule 144A Global Security may upon request exchange
such beneficial interest for a Registered Security only as
provided in this paragraph. Upon receipt by the Company and
the Trustee of (i) written instructions (or such other form
of instructions as is customary) on behalf of any person
having a beneficial interest in a Rule 144A Global Security
and (ii) in the case of a Restricted Security, the following
additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being trans-
ferred to the person designated as being the
beneficial owner, a certification to that
effect from such person; or
(B) if such beneficial interest is being trans-
ferred to a person other than the person des-
ignated as being the beneficial owner, the
provisions of Section 2.6(b) hereof have been
satisfied;
<PAGE>
in which case the Trustee or any custodian for the Rule 144A
Global Security, at the direction of the Trustee shall, in
accordance with the standing instructions and procedures
existing between the Depositary and such custodian, cause
the aggregate principal amount of the Rule 144A Global
Security to be reduced accordingly and, following such
reduction, the Company shall execute and the Trustee shall
authenticate and deliver to the transferee a Registered
Security in the appropriate principal amount and, if such
Registered Security is a Restricted Security, including the
appropriate legend. Registered Securities issued in ex-
change for a beneficial interest in the Rule 144A Global
Security pursuant to this paragraph shall be registered in
such names and in such authorized denominations as shall be
instructed to the Trustee. The Trustee shall deliver such
Registered Securities to the persons in whose names such
Securities are so registered.
(f) Notwithstanding any other provision of
this Indenture (other than the provisions set forth in Sec-
tion 2.6(e) hereof), the Rule 144A Global Security may not
be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
(g) If at any time either (i) the Depositary
for the Rule 144A Global Security notifies the Company and
the Company notifies the Trustee in writing that the Deposi-
tary is unwilling or unable to continue as Depositary for
the Rule 144A Global Security and a successor Depositary for
the Rule 144A Global Security is not appointed by the Compa-
ny within 90 days after delivery of such notice, or (ii) the
Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Registered
Securities under this Indenture, then the Company shall
execute, and the Trustee shall authenticate and deliver,
Registered Securities in an aggregate principal amount equal
to the principal amount of the Rule 144A Global Security in
exchange for such Rule 144A Global Security (registered in
the names and denominations specified by the Depositary).
(h) Each certificate evidencing Restricted
Securities shall bear a legend in substantially the follow-
ing form:
<PAGE>
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, REP-
RESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT
OF THE COMPANY THAT: (I) IT HAS ACQUIRED A "RE-
STRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO
THE DATE WHICH IS THREE YEARS AFTER THE LATER OF
THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATED PERSON
OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY) (THE "RESALE
RESTRICTION TERMINATION DATE") EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECU-
RITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSAC-
TION MEETING THE REQUIREMENTS OF RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) IN A TRANSACTION
ARRANGED BY A BROKER OR DEALER REGISTERED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT) THAT IS
ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCRED-
ITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURI-
TIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND, IN EACH CASE, IN ACCOR-
DANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY APPLICABLE JU-
RISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT
<PAGE>
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM
IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET
FORTH IN (II) ABOVE. IF ANY RESALE OR OTHER
TRANSFER OF THIS SECURITY IS PROPOSED TO BE MADE
PURSUANT TO CLAUSE II(E) ABOVE PRIOR TO THE DATE
WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL
ISSUANCE HEREOF, THE TRANSFEROR SHALL DELIVER A
LETTER FROM THE TRANSFEREE CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY. ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE
FOREGOING CLAUSES (II)(D), (E) AND (F) IS SUBJECT
TO THE RIGHT OF THE ISSUER OF THIS SECURITY TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
IT IN FORM AND SUBSTANCE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
(i) The restrictions imposed by Section
2.6(b) upon the transferability of any particular Restricted
Security shall cease and terminate (i) when such Restricted
Security has been (x) sold pursuant to an effective regis-
tration statement under the Securities Act or (y) trans-
ferred pursuant to Rule 144 under the Securities Act (or any
successor provisions thereto), unless the holder is an
affiliate of the Company within the meaning of said Rule 144
(or such successor provision) or (ii) upon the date which is
three years after the later of the date of original issue
and the last date on which the Company or any Affiliate of
the Company was the owner of such Restricted Security (or
any predecessor security)(the "Resale Restriction Termina-
tion Date"). Any Restricted Security as to which such re-
strictions on transfer shall have expired in accordance with
their terms or shall have terminated may, upon surrender of
such Restricted Security for exchange to the Trustee in
accordance with the provisions of this Section 2.6(i) (ac-
companied, in the event that such restrictions on transfer
have terminated by reason of a transfer pursuant to Rule 144
(or any successor provision), by an opinion of counsel
reasonably acceptable to the Company, addressed to the
Company and the Trustee and in form and scope satisfactory
to the Company, to the effect that the transfer of such
Restricted Security has been made in compliance with Rule
144 (or such successor provision)), be exchanged for a new
Registered Security, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required
by Section 2.6(h) hereof. The Company shall promptly inform
the Trustee in writing of the effective date of any regis-
tration statement registering the Securities under the
Securities Act.
<PAGE>
(j) The transfer and exchange of the Rule
144A Global Security or beneficial interest therein shall be
effected through the Depositary, in accordance with this
Indenture and the procedures of the Depositary therefor,
which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securi-
ties Act.
(k) At such time as all beneficial interests
in the Rule 144A Global Security have either been exchanged
for Registered Securities, redeemed, repurchased or cancel-
led, the Rule 144A Global Security shall be returned to or
retained and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Rule
144A Global Security is exchanged for Registered Securities,
redeemed, repurchased or cancelled, the principal amount of
Securities represented by the Rule 144A Global Security
shall be reduced accordingly and an endorsement shall be
made on the Rule 144A Global Security, by the Trustee or any
custodian therefor, at the direction of the Trustee, to
reflect such reduction.
(l) All Securities issued upon any registra-
tion of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same obli-
gations, and entitled to the same benefits under this In-
denture, as the Securities surrendered upon such registra-
tion of transfer or exchange.
(m) Every Registered Security presented for
registration of transfer or surrendered for exchange shall
be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee
and the Transfer Agent to which such Security is presented
or surrendered and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
All such instruments shall comply with the applicable provi-
sions of this Section 2.6. The registration of the transfer
of a Registered Security by the Registrar shall be deemed to
be the written acknowledgement of such transfer on behalf of
the Company.
(n) No service charge shall be made for any
registration of transfer or exchange, but the Company or the
Transfer Agent may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to
Section 2.7 hereof or not involving any registration of
transfer.
<PAGE>
(o) Neither the Company nor the Trustee nor
any of the offices or agencies designated for the purposes
specified in Section 4.2 hereof nor any Transfer Agent shall
be required (i) to exchange Bearer Securities for Registered
Securities during the period between the close of business
on any Interest Record Date and the opening of business on
the next succeeding Interest Payment Date, (ii) to exchange
any Bearer Security (or portion thereof) for a Registered
Security if the Company shall determine and inform the
Trustee in writing that, as a result thereof, the Company
may incur adverse consequences under the Federal income tax
laws and regulations (including proposed regulations) of the
United States in effect or proposed at the time of such
exchange, or (iii) in the event of a redemption in part, (A)
to register the transfer or exchange of Registered Securi-
ties or to exchange any Bearer Securities for Registered
Securities during a period of 15 days immediately preceding
the date notice is given pursuant to Section 3(e) of the
Registered Securities and the Bearer Securities identifying
the serial numbers of any Securities to be redeemed, or (B)
to register the transfer or exchange of any Registered
Security so selected for redemption in whole or in part,
except portions not being redeemed of Securities being
redeemed in part, or (C) to exchange any Bearer Security
called for redemption; provided, however, that a Bearer
Security called for redemption may be exchanged, on the
terms and conditions set forth above, for a Registered
Security that is simultaneously surrendered, with written
instruction for payment on the Redemption Date, unless the
Redemption Date is between the close of business on any
Interest Record Date and the close of business on the next
succeeding Interest Payment Date, in which case such ex-
change may only be made prior to the Interest Record Date
immediately preceding the Redemption Date.
SECTION 2.7. Exchange.
(a) At any time and from time to time after
the execution and delivery of this Indenture, the Company
may deliver Securities executed by the Company in accordance
with this Indenture to the Trustee for authentication to-
gether with an Officers' Certificate of the Company direct-
ing such authentication, and the Trustee shall thereupon au-
thenticate and make such Securities available for delivery
upon and in accordance with the written order of the Compa-
ny. No Security shall be valid or enforceable for any
purpose unless and until the certificate of authentication
thereon shall have been manually signed by a duly authorized
officer of the Trustee and such duly executed certificate of
authentication on any Security shall be conclusive evidence
that the Security has been duly authenticated and delivered
hereunder.
<PAGE>
(b) The Regulation S Global Security, the
Rule 144A Global Security and the Registered Accredited
Investor Securities will be issued upon payment to the
Company or its order in United States dollars in next-day
funds by check or wire transfer to a United States dollar
account designated by the Company, at 3:00 p.m., London
time, on October 24, 1995, or at such other time on the same
or such other date, not later than 5:00 p.m., London time,
on the fifth Business Day in London thereafter, as the
Managers and the Company may agree (the "Closing Date").
Such payment will be made (1) upon authorization from the
Managers, (2) against delivery as provided in Section 2.7(c)
hereof of the amount, if any, of Rule 144A Securities and
Accredited Investor Securities as the Managers may request
and as they shall direct, and (3) against the delivery of
the Regulation S Global Security for the balance of the
Securities to Morgan Guaranty Trust Company of New York,
London office, as depositary (the "Common Depositary") for
Morgan Guaranty Trust Company of New York, Brussels office,
as operator of the Euroclear System (the "Euroclear Opera-
tor"), and Cedel Bank societe anonyme ("Cedel"). The Regu-
lation S Global Security shall be held on deposit with the
Common Depositary for the accounts of the Euroclear Operator
and Cedel, for credit to the Managers' respective Securities
Clearance Accounts (or to such other accounts as NatWest
Securities Limited may have specified) with the Euroclear
Operator or Cedel.
(c) On the Closing Date, the Company shall
execute and deliver to (i) the Managers, at the offices of
Skadden, Arps, Slate, Meagher & Flom in New York, temporary
Registered Accredited Investor Securities (which shall have
been duly authenticated by the Trustee and which may be in
typewritten form) in respect of the Accredited Investor
Securities and (ii) the Depositary, at its office in New
York, the Rule 144A Global Security (which shall have been
duly authenticated by the Trustee and which may be in type-
written form) in respect of the Rule 144A Securities. On or
before the Exchange Date (as defined in Section 2.7(d)), the
Company will execute and deliver to the Trustee at its
office in New York City Registered Accredited Investor
Securities in the aggregate principal amount of the Regis-
tered Accredited Investor Securities outstanding. At the
request of a holder of temporary Registered Accredited
Investor Securities, the Trustee shall deliver to such
holder Registered Accredited Investor Securities in exchange
for an equal aggregate principal amount of temporary Regis-
tered Accredited Investor Securities.
<PAGE>
(d) On or before the Exchange Date, the
Company will execute and deliver to the Trustee, at its
office in London, definitive Registered Regulation S Securi-
ties and Bearer Securities in the aggregate principal amount
outstanding in the Regulation S Global Security and in such
proportion of Registered Regulation S Securities to Bearer
Securities as the Trustee may specify. "Exchange Date"
means the date following the expiration of the 40-day period
commencing on the Closing Date. On or after the Exchange
Date, the Regulation S Global Security may be surrendered to
the Trustee at its London office to be exchanged, as a whole
or in part, for definitive Bearer Securities without charge,
and the Trustee shall authenticate and deliver, in exchange
for such Regulation S Global Security or the portions there-
of to be exchanged, an equal aggregate principal amount of
definitive Bearer Securities, but only upon presentation to
the Trustee at its office in London of a certificate of the
Euroclear Operator or Cedel with respect to the Regulation S
Global Security or portions thereof being exchanged, sub-
stantially in the form of Exhibit C hereto, to the effect
that it has received a certificate or certificates in sub-
stantially the form set forth in Exhibit D hereto dated no
earlier than 15 days prior to the Exchange Date and signed
by the person appearing in its records as the owner of the
Regulation S Global Security or portions thereof being
exchanged. Similarly, after the Exchange Date, portions of
the Regulation S Global Security may be exchanged for an
equal aggregate principal amount of definitive Registered
Regulation S Securities upon presentation to the Trustee at
its office in London of a certificate substantially in the
form of Exhibit F hereto.
(e) The definitive Securities and Coupons
shall be printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any
other manner permitted by the rules of any securities ex-
change on which the Securities may be listed, all as deter-
mined by the officers executing such Securities and Coupons,
as evidenced by such execution.
(f) Only Bearer Securities may be issued
upon receipt by the Euroclear Operator or Cedel of a certif-
icate or certificates in the form of Exhibit D hereto.
Bearer Securities will be delivered only outside the United
States, its territories or its possessions. Only Registered
Securities may be issued upon receipt by the Euroclear
Operator or Cedel of a certificate or certificates in the
form of Exhibit E hereto.
(g) The delivery to the Trustee by the
Euroclear Operator or Cedel of any certificate referred to
above may be relied upon by the Company and the Trustee as
conclusive evidence that a corresponding certificate or
certificates has or have been delivered to the Euroclear
Operator or Cedel pursuant to the terms of this Indenture.
<PAGE>
(h) Upon any such exchange of a portion of
the Regulation S Global Security for a definitive Bearer
Security or Securities or a definitive Registered Regulation
S Security or Securities, the Regulation S Global Security
shall be endorsed by the Trustee to reflect the reduction of
its principal amount by an amount equal to the aggregate
principal amount of such definitive Security or Securities.
Until so exchanged in full for definitive Securities, the
Regulation S Global Security shall in all respects be enti-
tled to the same benefits under this Indenture as definitive
Securities authenticated and delivered hereunder, except
that neither the Holder thereof nor the beneficial owners of
the Regulation S Global Security shall be entitled to re-
ceive payment of interest thereon or exercise conversion
rights with respect thereto.
SECTION 2.8. Replacement Securities.
If a mutilated Security or a Security with a
mutilated Coupon appertaining thereto is surrendered to the
Trustee or if the Holder of a Security or Coupon claims and
submits an affidavit or other evidence, satisfactory to the
Trustee, to the Trustee to the effect that the Security or
Coupon has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate and
deliver, in lieu of any such lost, destroyed or wrongfully
taken Security or in exchange for the Security to which a
lost, destroyed or wrongfully taken Coupon appertains (with
all appurtenant Coupons not lost, destroyed or wrongfully
taken) a replacement Security with Coupons corresponding to
the Coupons, if any, appertaining to such lost, destroyed or
wrongfully taken Security or to the Security to which such
lost, destroyed or wrongfully taken Coupon appertains, if
the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemni-
ty bond or other indemnity, sufficient in the judgment of
both the Company and the Trustee, to protect the Company,
the Trustee or any Agent from any loss which any of them may
suffer if a Security or Coupon is replaced. The Company may
charge such Holder for its reasonable, out-of-pocket expens-
es in replacing a Security or Coupon.
In case any such lost, destroyed or wrongfully
taken Security or Coupon has become or is about to become
due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or Coupon;
provided, however, that principal of and any premium and
interest on Bearer Securities shall, except as otherwise
provided in the Bearer Securities, be payable only at an
office or agency located outside the United States and its
possessions.
Every replacement Security or Coupon is an addi-
tional obligation of the Company.
<PAGE>
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 2.9. Outstanding Securities.
Securities outstanding at any time are all the
Securities that have been authenticated by the Trustee
(including any Security represented by a Rule 144A Global
Security or a Regulation S Global Security) except those
cancelled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Security ef-
fected by the Trustee hereunder and those described in this
Section 2.9 as not outstanding. A Security does not cease
to be outstanding because the Company or an Affiliate of the
Company holds the Security, except as provided in Section
2.10 hereof.
If a Security is replaced pursuant to Section 2.8
hereof (other than a mutilated Security surrendered for re-
placement), it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security
ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.8 hereof.
If on a Redemption Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds Cash
or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that
date in accordance with Section 3.3 hereof and payment of
the Securities called for redemption is not otherwise pro-
hibited pursuant to Article XII hereof or otherwise, then on
and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.10. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direc-
tion, amendment, supplement, waiver or consent, Securities
owned by the Company or an Affiliate of the Company shall be
disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any
such direction, amendment, supplement, waiver or consent,
only Securities that the Trustee knows are so owned shall be
disregarded.
<PAGE>
SECTION 2.11. Temporary Securities.
Until definitive Securities are ready for deliv-
ery, the Company may prepare and the Trustee shall authen-
ticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may
have variations that the Company reasonably and in good
faith considers appropriate for temporary Securities. With-
out unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same
benefits under this Indenture as permanent Securities au-
thenticated and delivered hereunder, except as provided in
Section 2.7(h) hereof.
SECTION 2.12. Cancellation.
The Company at any time may deliver Securities or
Coupons to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Securities
or Coupons surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee,
the Registrar or the Paying Agent (other than the Company or
an Affiliate of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall dispose
of all Securities or Coupons surrendered for transfer, ex-
change, payment or cancellation. Subject to Section 2.8
hereof, the Company may not issue new Securities or Coupons
to replace Securities or Coupons that have been paid or
delivered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 2.12,
except as expressly permitted in the form of Securities and
as permitted by this Indenture.
SECTION 2.13. Payment.
(a) The Company will pay or cause to be paid
to the Paying Agent the amounts, at the times and for the
purposes, set forth herein and in the text of the Securi-
ties, and the Company hereby authorizes and directs the
Paying Agent to make payment of the principal of, premium,
if any, and interest on and Additional Amounts, if any, on
the Securities from such payments.
<PAGE>
(b) At least 15 days prior to the date on
which any payment of Additional Amounts shall be required to
be made pursuant to Section 2 of the Securities, the Company
will furnish the Paying Agent, each other paying agency of
the Company and the Trustee with a certificate of one of its
duly authorized officers instructing the Paying Agent and
each other paying agency of the Company as to the amounts
required (i) to be deducted or withheld for or on account of
any taxes described in Section 2 of the Securities from a
payment to be made on that date and (ii) to be paid to each
holder of Securities or Coupons as Additional Amounts pursu-
ant to that paragraph. If the foregoing amounts are not
uniform for all Holders, then the Company's certificate
shall specify by country of residence or other factor the
amounts required to be deducted or withheld and to be paid
as Additional Amounts for each Holder or class of Holders of
the Securities or Coupons. In the absence of its receipt of
any such certificate from the Company, the Paying Agent may
make payment without deduction or withholding. The Company
hereby agrees to indemnify the Paying Agent, each other
paying agency of the Company and the Trustee for, and to
hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their
part, arising out of or in connection with actions taken or
omitted by any of them in reliance on any certificate fur-
nished pursuant to this Section.
(c) Interest on any Registered Security that
is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the person in
whose name that Security is registered at the close of
business on the Interest Record Date even if such Registered
Security is cancelled after such Interest Record Date. In
case a Bearer Security is surrendered for exchange for a
Registered Security after the close of business on any
Interest Record Date and before the opening of business on
the next succeeding Interest Payment Date, the Trustee shall
not be required to perform such transfer or exchange of such
Security.
(d) If a Registered Security is converted
after the close of business on an Interest Record Date and
before the opening of business on the next succeeding Inter-
est Payment Date, the interest due on such Interest Payment
Date shall be paid on such Interest Payment Date to the
person in whose name that Security is registered at the
close of business on that Interest Record Date.
(e) In order to provide for the payment of
the principal of, premium, if any, and interest on the Secu-
rities as the same shall become due and payable, the Company
shall pay to the Paying Agent at its office in London, in
Cash, and in same day funds, the following amounts (and the
Company shall give notice to the Trustee at least one full
Business Day prior to the date payment is due to the Paying
Agent as to the means of such payment), to be held and
applied by the Paying Agent as hereinafter set forth:
<PAGE>
(i) The Company shall pay to the Paying
Agent on the Business Day immediately prior to each
Interest Payment Date an amount sufficient to pay the
interest due on (and Additional Amounts, if any, on)
all the Securities outstanding on such Interest Payment
Date, and the Paying Agent shall apply the amounts so
paid to it to the payment of such interest (and Addi-
tional Amounts, if any) on such Interest Payment Date.
(ii) If the Company shall elect, or shall be
required, to redeem all or any part of the Securities
in accordance with Section 3.1 hereof, the Company will
pay to the Paying Agent (other than the Company or an
Affiliate of the Company) on the Business Day immedi-
ately prior to the Redemption Date thereof an amount
sufficient (with any amount then held by the Paying
Agent and available for the purpose) to pay the Redemp-
tion Price of the Securities called for redemption or
entitled to be redeemed, together with accrued interest
thereon (and Additional Amounts, if any, with respect
thereto) to the Redemption Date fixed for redemption
and not paid pursuant to clause (e)(i) of this Section
2.13, and the Paying Agent shall apply such amount to
the payment of the Redemption Price and accrued inter-
est (and Additional Amounts, if any) in accordance with
the terms of Article III hereof.
(iii) On the Business Day immediately prior
to the Stated Maturity of the Securities, the Company
shall pay to the Paying Agent an amount which, together
with any amounts then held by the Paying Agent, and
available for payment thereof, shall be equal to the
entire amount of principal and interest (and Additional
Amounts, if any) to be due on such maturity date on all
the Securities then outstanding, and the Paying Agent
shall apply such amount to the payment of the principal
of and interest on (and Additional Amounts, if any, on)
the Securities in accordance with the terms of the
Securities.
SECTION 2.14. Defaulted Interest.
Any interest on any Registered Security which is
payable, but is not punctually paid or duly provided for, on
any Interest Payment Date plus, to the extent lawful, any
interest payable on the defaulted interest (herein called
"Defaulted Interest") shall forthwith cease to be payable to
the registered holder on the relevant Interest Record Date,
and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2)
below:
<PAGE>
(1) The Company may make payment of any
Defaulted Interest to the Holder of a Registered Secu-
rity on a subsequent record date established by notice
given by mail by or on behalf of the Company to such
Holder not less than 15 days preceding such subsequent
record date, such record date to be not less than 10
days preceding the date of payment of such Defaulted
Interest.
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not in-
consistent with the requirements of any securities ex-
change on which the Securities may be listed, and upon
such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner
shall be deemed practicable by the Trustee.
Any Defaulted Interest payable in respect of any
Bearer Security shall be payable pursuant to such procedures
as may be satisfactory to the Trustee in such manner that
there is no discrimination between the Holders of Registered
Securities and Bearer Securities, and notice of the payment
date therefor shall be given by the Trustee, in the name and
at the expense of the Company, in the manner provided in
Section 14.2 hereof.
Subject to the foregoing provisions of this Sec-
tion 2.14, each Security delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.15. Computation of Interest. Interest
on the Securities shall be computed on the basis of a 360-
day year of twelve 30-day months.
ARTICLE III
REDEMPTION
SECTION 3.1. Right of Redemption.
If, under the circumstances described in Section 3
of the Registered Securities and Bearer Securities, the
Company shall elect or be required to redeem the outstanding
Securities, the following provisions shall be applicable:
<PAGE>
(a) Except in the case of redemption pur-
suant to Section 3(d) of the Registered Securities and the
Bearer Securities (in which case notice shall be given by
the Company as provided in subsection (c) of this Section
3.1), the Company shall, at least 75 days (or such shorter
period as shall be reasonably acceptable to the Trustee)
before the date designated for such redemption, give written
notice to the Agents of its election to redeem the outstand-
ing Securities on the Redemption Date specified in such
notice and state in such notice that the conditions pre-
cedent to such redemption have occurred and describe them,
and shall request the Trustee to arrange for publication and
mailing of the notice specified in clause (b) below.
(b) In the case the Company shall give
notice to the Agents of its election to redeem the Securi-
ties, the Trustee shall cause to be given to Holders on
behalf of and at the expense of the Company a notice of re-
demption in accordance with Section 14.2 hereof. The Trust-
ee shall send a copy of such notice of redemption to the
Company, the Paying Agent (if different from the Trustee)
and each other paying agency of the Company. In the case of
a redemption in whole, notice will be given once not more
than 60 nor less than 30 days prior to the Redemption Date.
In the case of a partial redemption, notice will be given
twice, the first such notice to be given not more than 60
nor less than 45 days prior to the Redemption Date and the
second such notice to be given not more than 45 and not less
than 30 days prior to the Redemption Date. The Trustee
shall notify the Company promptly of the portions of out-
standing Securities to be called for redemption as deter-
mined pursuant to Section 3(a) of the Registered Securities
and Bearer Securities.
(c) Under the circumstances described in
Section 3(d) of the Registered Securities and Bearer Securi-
ties concerning the redemption of outstanding Securities at
the option of the holders thereof, the following provisions
shall be applicable:
(i) The Company shall give notice to the
Trustee of the occurrence of a Change of Control imme-
diately upon the occurrence of such Change of Control
or, if later, immediately upon learning of the occur-
rence of such Change of Control (provided, that the
Company shall be deemed to have knowledge of any infor-
mation contained in any Statement on Schedule 13D or
13G filed with the U.S. Securities and Exchange Commis-
sion). Such notice shall state:
A. The Holder Redemption Date in re-
spect of such Change of Control;
B. The Redemption Price as set forth
in Section 3(d) of the Registered Securities and
Bearer Securities;
<PAGE>
C. The place or places of payment of
the Registered Securities and Bearer Securities;
and
D. Such other information as the Com-
pany shall deem advisable.
(ii) The Trustee shall cause to be given to
the Holders on behalf of the Company a notice of enti-
tlement to redeem in accordance with the provisions of
Section 14.2 hereof. Such notice shall be given on
behalf and at the expense of the Company and shall be
given not later than 30 days after the later of the
Exchange Date, the date of the occurrence of a Change
of Control or the date of receipt of notice by the
Trustee from the Company of such Change of Control (the
date on which such notice is given by the Trustee shall
be the "Change of Control Notice Date").
(iii) Upon the deposit of any of the Regis-
tered Securities or Bearer Securities with the agency
designated by the Company as the place for payment of
the Registered Securities and Bearer Securities togeth-
er with a duly signed and completed Redemption Notice
in the form set forth on the reverse of the Bearer
Securities and Registered Securities, all in accordance
with the provisions of Section 3 of the Registered
Securities and Bearer Securities, the Holder of such
Registered Security and Bearer Security shall be enti-
tled to receive a non-transferable receipt evidencing
such deposit.
(iv) The Trustee shall notify the Company on
each Business Day in the five Business Days prior to
the Holder Redemption Date for outstanding Securities
to be redeemed under this Section 3.1(c) of the amount
required to redeem such Securities.
(d) Notices relating to the redemption of
Securities whether at the option of the Company or the
Holder hereof shall specify: the Redemption Date or the
Holder Redemption Date, as the case may be; the Redemption
Price; the place or places of payment; that payment will be
made upon presentation and surrender of the Securities to be
redeemed, together, in the case of a Bearer Security, with
all appurtenant Coupons, if any, maturing subsequent to the
Redemption Date; that interest accrued to the Redemption
Date will be paid as specified in such notice; that on and
after said date interest thereon will cease to accrue; and
such other information as the Company may wish to include.
In the case of a redemption by the Company at the option of
the Holder of a Security, the notices given by the Trustee
informing a Holder of such Holder's entitlement to redeem
<PAGE>
shall also specify that a Holder electing redemption will be
entitled to revoke its election by delivering a written
notice of such revocation, together with the Holder's non-
transferable receipt for such Security, to the agency desig-
nated by the Company as the place for the payment of the
Securities to be so redeemed not later than the Holder Re-
demption Date in the case of a redemption pursuant to Sec-
tion 3(d) of the Registered Securities and Bearer Securi-
ties. In the case of a redemption in part at the option of
the Company, notices shall specify the aggregate principal
amount of Securities to be redeemed and the aggregate prin-
cipal amount of Securities outstanding after such partial
redemption. The first notice shall specify the last date on
which exchanges or transfers of Securities may be made (in
accordance with Section 2.6(o) hereof), and the second
notice shall specify the serial numbers of the Securities
and the portions thereof called for redemption. In the case
of a redemption in whole or in part by the Company, notices
shall specify the date the conversion privilege expires in
accordance with Section 4(a) of the Registered Securities
and Bearer Securities. Such notices shall also state that
the conditions precedent, if any, to such redemption have
occurred and, in the case of a redemption pursuant to Sec-
tion 3(d) of the Registered Securities and Bearer Securi-
ties, the last day for surrender of the Securities being
redeemed.
SECTION 3.2. Effect of Notice of Redemption.
Once notice of redemption is made in accordance
with Section 3.1 hereof, Securities called for redemption
become due and payable on the Redemption Date and at the
Redemption Price, including accrued and unpaid interest and
Additional Amounts, if any, to the Redemption Date. Upon
surrender to the Trustee or Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price,
including accrued and unpaid interest and Additional
Amounts, if any, to the Redemption Date; provided that if
the Redemption Date is after a regular Interest Record Date
and on or prior to the corresponding Interest Payment Date,
the accrued interest to the Redemption Date and Additional
Amounts, if any, shall be payable on the Redemption Date to
the Holder of the redeemed Securities registered on the
relevant Interest Record Date; and provided, further, that
if a Redemption Date is not a Business Day, payment shall be
made on the next succeeding Business Day and no interest or
Additional Amounts shall accrue for the period from such Re-
demption Date to such succeeding Business Day.
<PAGE>
SECTION 3.3. Deposit of Redemption Price.
On the Business Day immediately prior to the Re-
demption Date, the Company shall deposit with the Paying
Agent (other than the Company or an Affiliate of the Compa-
ny) Cash sufficient to pay the Redemption Price of, includ-
ing accrued and unpaid interest on, and Additional Amounts
with respect to, all Securities to be redeemed on such Re-
demption Date (other than Securities or portions thereof
called for redemption on that date that have been delivered
by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Company any Cash so
deposited which is not required for that purpose upon the
written request of the Company.
If the Company complies with the preceding para-
graph and the other provisions of this Article III and
payment of the Securities called for redemption is not
prohibited under Article XII hereof or otherwise, interest
and Additional Amounts on the Securities to be redeemed will
cease to accrue on the applicable Redemption Date, whether
or not such Securities are presented for payment. Notwith-
standing anything herein to the contrary, if any Security
surrendered for redemption in the manner provided in the
Securities shall not be so paid upon surrender for redemp-
tion because of the failure of the Company to comply with
the preceding paragraph, interest and Additional Amounts
shall continue to accrue and be paid from the Redemption
Date until such payment is made on the unpaid principal,
and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Security.
SECTION 3.4. Securities Redeemed in Part.
Upon surrender of a Security that is to be re-
deemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder, without ser-
vice charge to the Holder, a new Security or Securities
equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
The Company shall pay the principal of, premium,
if any, interest on, and Additional Amounts, if any, with
respect to, the Securities on the dates and in the manner
provided in the Securities, as applicable. An installment
of principal of, premium, if any, interest on, or Additional
Amounts, if any, with respect to, the Securities shall be
considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the
Company) holds for the benefit of the Holders on that date
Cash deposited and designated for and sufficient to pay the
installment.
<PAGE>
The Company shall pay interest on overdue princi-
pal and on overdue installments of interest at the rate
specified in the Securities compounded semi-annually, to the
extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
(a) So long as any of the Registered Securi-
ties remain outstanding or until monies for the payment of
all principal of, premium, if any, and interest on (and
Additional Amounts with respect to) all outstanding Securi-
ties shall have been made available at the office of the
Paying Agent and shall have been returned to the Company as
provided in Section 8.2 hereof, the Company will maintain in
the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities may be presented or
surrendered for payment, an office or agency where the
Securities may be surrendered for conversion as provided in
this Indenture and an office or agency where notices and
demands to or upon the Company with respect to the Regis-
tered Securities or of this Indenture may be served, in each
case which office or agency shall be a bank or trust company
organized, in good standing and doing business under the
laws of the United States of America or of any State of the
United States of America. So long as any Bearer Securities
remain outstanding or until monies for the payment of all
principal of, premium, if any, and interest on (and Addi-
tional Amounts with respect to) all outstanding Securities
shall have been made available at the office of the Paying
Agent and shall have been returned to the Company as provid-
ed in Section 8.2 hereof, the Company will maintain, in at
least one city in Western Europe, which shall be Luxembourg
so long as the Securities are listed on the Luxembourg Stock
Exchange, an office or agency where Bearer Securities may be
surrendered for payment or conversion pursuant to Section
2.6 hereof and where notices and demands to or upon the
Company in respect of the Bearer Securities of that series
or of this Indenture may be served. The Company now intends
to maintain additional agencies (subject to applicable laws
and regulations) where Bearer Securities and Coupons may be
surrendered for payment, where Registered Securities may be
surrendered for payment and where Securities may be surren-
dered for conversion in London, England and Luxembourg, and
during such period to keep the Agents advised of the names
and locations of such agencies. Unless the Company shall
otherwise notify each of the Agents in writing, the sole
such paying agencies and conversion agencies shall be the
agencies specified in the Securities.
<PAGE>
(b) So long as there shall be Securities
outstanding or until monies for the payment of all principal
of, premium, if any, and interest on (and Additional Amounts
with respect to) all outstanding Securities shall have been
made available at the office of the Paying Agent and shall
have been returned to the Company as provided in Section 8.2
hereof, the Company shall maintain a Security Registrar and
additional transfer agencies (each a "Transfer Agent and,
collectively, the "Transfer Agents") (i) where Registered
Securities may be surrendered for registration of transfer
or for exchange for Registered Securities in New York City
and (ii) in at least one city in Western Europe, which shall
be Luxembourg so long as the Securities are listed on the
Luxembourg Stock Exchange, where Registered Securities may
be surrendered for purposes of such transfer or exchange,
and where Bearer Securities may be delivered in exchange for
Bearer Securities or for Registered Securities. Consistent
with applicable laws and regulations, including the provi-
sions of the federal income tax laws of the United States,
such agencies may be the same agencies as or different
agencies from those maintained by the Company pursuant to
Section 4.2(a). The Company hereby appoints the London
Office of Chemical Bank and Banque Internationale a Luxem-
bourg S.A., 69 route d'Esch, L-1470 Luxembourg, as Transfer
Agents for such transfers and exchanges. The registration
of transfer or exchange of Registered Securities shall only
be made by the Trustee in New York City.
(c) The Company will give to the Trustee
written notice of the locations of such offices or agencies
and of any change in the locations thereof. If at any time
the Company shall fail to maintain any such offices or
agencies or shall fail to give such notice of the location
or of any change in the locations thereof, presentations,
surrenders, notices and demands in respect of Registered
Securities may be made or served at the principal corporate
trust office of the Trustee in New York and in respect of
Bearer Securities may be made or served at the principal
office of the Trustee in London, England at which at any
particular time its corporate trust business shall be admin-
istered.
SECTION 4.3. Corporate Existence.
Subject to Article V hereof, the Company shall do
or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and
the corporate or other existence of each of its Subsidiaries
in accordance with the respective organizational documents
of each of them and the rights (charter and statutory) and
corporate franchises of the Company and each of its Subsid-
iaries; provided, however, that the Company shall not be re-
quired to preserve, with respect to itself, any right or
franchise, and with respect to any of its Subsidiaries, any
such existence, right or franchise, if (a) the Company shall
determine that the preservation thereof is no longer desir-
able in the conduct of the business of such entity and (b)
the loss thereof is not disadvantageous in any material
respect to the Holders.
<PAGE>
SECTION 4.4. Payment of Taxes and Other Claims.
Except with respect to immaterial items, the
Company shall, and shall cause each of its Subsidiaries to,
pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and
any penalties, interest and additions to taxes) levied or
imposed upon the Company or any of its Subsidiaries or any
of their respective properties and assets and (ii) all
lawful claims, whether for labor, materials, supplies,
services or anything else, which have become due and payable
and which by law have or may become a Lien upon the property
and assets of the Company or any of its Subsidiaries; pro-
vided, however, that neither the Company nor any Subsidiary
shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which disputed
amounts adequate reserves have been established in accor-
dance with GAAP.
SECTION 4.5. Maintenance of Properties and Insur-
ance.
The Company shall cause all material properties
used or useful to the conduct of its business and the busi-
ness of each of its Subsidiaries to be maintained and kept
in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
in their reasonable judgment may be necessary, so that the
business carried on in connection therewith may be properly
conducted at all times; provided, however, that nothing in
this Section 4.5 shall prevent the Company or any Subsidiary
from discontinuing any operation or maintenance of any of
such properties, or disposing of any of them, if such dis-
continuance or disposal is (a), in the judgment of the
Company, desirable in the conduct of the business of such
entity and (b) not disadvantageous in any material respect
to the Holders.
<PAGE>
The Company shall provide, or cause to be provid-
ed, for itself and each of its Subsidiaries, insurance (in-
cluding appropriate self-insurance) against loss or damage
of the kinds that, in the reasonable, good faith opinion of
the Company is adequate and appropriate for the conduct of
the business of the Company and such Subsidiaries in a
prudent manner, with (except for self-insurance) reputable
insurers or with the government of the United States of
America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall
be customary, in the reasonable, good faith opinion of the
Company and adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent
manner for entities similarly situated in the industry,
unless failure to provide such insurance (together with all
other such failures) would not have a material adverse
effect on the financial condition or results of operations
of the Company or such Subsidiary.
SECTION 4.6. Compliance Certificate; Notice of
Default.
(a) The Company shall deliver to the Trustee
within 120 days after the end of its fiscal year an
Officers' Certificate complying with Section 314(a)(4) of
the TIA and stating that a review of its activities and the
activities of 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, whether or not the signer
knows of any failure by the Company or any Subsidiary of the
Company to comply with any conditions or covenants in this
Indenture and, if such signor does know of such a failure to
comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify
the Trustee should the relevant fiscal year end on any date
other than the current fiscal year end date.
(b) The Company shall, so long as any of the
Securities are outstanding, deliver to the Trustee, promptly
upon becoming aware of any Default, Event of Default or fact
which would prohibit the making of any payment to or by the
Trustee in respect of the Securities, an Officers' Certifi-
cate specifying such Default, Event of Default or fact and
what action the Company is taking or proposes to take with
respect thereto. The Trustee shall not be deemed to have
knowledge of any Default, any Event of Default or any such
fact unless one of its Trust Officers receives notice there-
of from the Company or any of the Holders.
<PAGE>
SECTION 4.7. Reports.
Whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Ex-
change Act, the Company shall deliver to the Trustee and to
each Holder identified to the Company, and to prospective
purchasers of Securities identified to the Company by
NatWest Securities Limited, within 15 days after it is or
would have been required to file such with the SEC, annual
and quarterly consolidated financial statements substantial-
ly equivalent to financial statements that would have been
included in reports filed with the SEC if the Company was
subject to the requirements of Section 13 or 15(d) of the
Exchange Act, including, with respect to annual information
only, a report thereon by the Company's certified indepen-
dent public accountants as such would be required in such
reports to the SEC and, in each case, together with a
management's discussion and analysis of financial condition
and results of operations which would be so required.
SECTION 4.8. Limitation on Status as Investment
Company.
Neither the Company nor any of its Subsidiaries
shall become an "investment company" (as that term is de-
fined in the Investment Company Act of 1940, as amended), or
otherwise become subject to regulation under the Investment
Company Act.
SECTION 4.9. Waiver of Stay, Extension or Usury
Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the Company
from paying all or any portion of the principal of, premium
of, interest on, or Additional Amounts with respect to, the
Securities as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby ex-
pressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.10. Rule 144A Information Requirement.
The Company shall furnish to the Holders or bene-
ficial holders of the Securities or the underlying Common
Stock and prospective purchasers of Securities or the under-
lying Common Stock designated by the Holders of Securities
or the underlying Common Stock, upon their request, the
information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act until such time as the
Securities are no longer "restricted securities" within the
meaning of Rule 144 under the Securities Act.
<PAGE>
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Con-
solidation.
(a) The Company shall not, directly or
indirectly, consolidate with or merge with or into another
Person or sell, lease, convey or transfer all or substan-
tially all of its assets (computed on a consolidated basis),
whether in a single transaction or a series of related
transactions, to another Person or group of affiliated
Persons, unless (i) either (a) in the case of a merger or
consolidation, the Company is the surviving entity or (b)
the resulting, surviving or transferee entity is a corpora-
tion organized under the laws of the United States, any
state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of
the Company in connection with the Securities and the Inden-
ture; (ii) no Default or Event of Default shall exist or
shall occur immediately before or after giving effect on a
pro forma basis to such transaction; and (iii) the Company
has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is re-
quired, such supplemental indenture comply with the Inden-
ture and that all conditions precedent relating to such
transactions have been satisfied.
(b) For purposes of clause (a) of this
Section 5.1, the sale, lease, conveyance, assignment, trans-
fer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the
Company, which properties and assets, if held by the Company
instead of such Subsidiaries, would constitute all or sub-
stantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer
of all or substantially all of the properties and assets of
the Company.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any sale,
lease, conveyance or transfer of all or substantially all of
the assets of the Company in accordance with the foregoing,
the successor corporation formed by such consolidation or
into which the Company is merged or to which such sale,
lease, conveyance or transfer is made, shall succeed to, and
be substituted for, and may exercise every right and power
of, the Company under the Indenture with the same effect as
if such successor corporation had been named therein as the
Company, and when a successor corporation duly assumes all
of the obligations of the Company pursuant hereto and pursu-
ant to the Securities, the predecessor (except in the case
of a lease) shall be released from such obligations (except
with respect to any obligations that arise from or as a
result of such transaction).
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
"Event of Default," wherever used herein, means any one
of the following events (whatever the reason for such Event
of Default and whether it shall be caused voluntarily or
involuntarily or effected, without limitation, by operation
of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative
or governmental body):
(1) failure to pay any installment of inter-
est on, or Additional Amounts with respect to, the
Securities as and when the same becomes due and pay-
able, or to perform any conversion of the Securities
required under this Indenture, and the continuance of
such default for a period of 30 days, whether or not
such payment is prohibited by Article XII hereof;
(2) failure to pay all or any part of the
principal of, or premium, if any on the Securities when
and as the same become due and payable at maturity, re-
demption, by acceleration or otherwise, including,
without limitation, default in the payment of the Re-
demption Price on the Redemption Date in accordance
with Section 3(d) of the Registered Securities and the
Bearer Securities, whether or not such payment is pro-
hibited by Article XII hereof;
(3) failure by the Company to observe or
perform any covenant, agreement or warranty contained
in the Securities or this Indenture (other than a de-
fault in the performance of any covenant, agreement or
warranty which is specifically dealt with elsewhere in
this Section 6.1), and continuance of such failure for
a period of 60 days after there has been given, by reg-
istered or certified mail, to the Company by the Trust-
ee, or to the Company and the Trustee by Holders of at
least 25% in aggregate principal amount of the then
outstanding Securities, a written notice specifying
such default or breach, requesting it to be remedied
and stating that such notice is a "Notice of Default"
hereunder;
(4) a default under Indebtedness of the
Company or any of its Significant Subsidiaries with an
aggregate principal amount in excess of $10,000,000 (a)
resulting from the failure to pay principal, premium or
interest when due that extends beyond any stated period
of grace applicable thereto or (b) as a result of which
the maturity of such Indebtedness has been accelerated
prior to its stated maturity;
<PAGE>
(5) a decree, judgment, or order by a court
of competent jurisdiction shall have been entered ad-
judging the Company or any of its Significant Subsid-
iaries as bankrupt or insolvent, or approving as prop-
erly filed a petition seeking reorganization of the
Company or any of its Significant Subsidiaries under
any bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a
period of 75 days; or a decree or order of a court of
competent jurisdiction over the appointment of a re-
ceiver, liquidator, trustee, or assignee in bankruptcy
or insolvency of the Company, any of its Significant
Subsidiaries, or of the property of any such Person, or
for the winding up or liquidation of the affairs of any
such Person, shall have been entered, and such decree,
judgment, or order shall have remained in force undis-
charged and unstayed for a period of 75 days;
(6) the Company or any of its Significant
Subsidiaries shall institute proceedings to be adjudi-
cated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking reorgani-
zation under any bankruptcy or similar law or similar
statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a
Custodian, receiver, liquidator, trustee, or assignee
in bankruptcy or insolvency of it or any of its assets
or property, or shall make a general assignment for the
benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become
due, or shall, within the meaning of any Bankruptcy
Law, become insolvent, fail generally to pay its debts
as they become due, or take any corporate action in
furtherance of or to facilitate, conditionally or oth-
erwise, any of the foregoing; or
(7) final unsatisfied judgments not covered
by insurance, or the issuance of any warrant of attach-
ment against any portion of the property or assets of
the Company or any of its Significant Subsidiaries, ag-
gregating in excess of $2,000,000 at any one time shall
have been rendered against the Company or any of its
Subsidiaries and not have been stayed, bonded or dis-
charged for a period (during which execution shall not
be effectively stayed) of 75 days (or, in the case of
any such final judgment which provides for payment over
time, which shall so remain unstayed, unbonded or un-
discharged beyond any applicable payment date provided
therein).
<PAGE>
Notwithstanding the 60-day period and notice re-
quirement contained in Section 6.1(3) above, with respect to
a default under Section 3(d) of the Registered Securities
and the Bearer Securities the 60-day period referred to in
Section 6.1(3) shall be deemed to have begun as of the date
the Change of Control notice is required to be sent in the
event that the Company has not complied with the provisions
of Section 3 of the Registered Securities and the Bearer
Securities and the Trustee or Holders of at least 25% in
principal amount of the outstanding Securities thereafter
give the Notice of Default referred to in Section 6.1(3) to
the Company and, if applicable, the Trustee; provided,
however, that if the breach or default is a result of a de-
fault in the payment when due of the Redemption Price on the
Redemption Date, such Event of Default shall be deemed, for
purposes of this Section 6.1, to arise no later than on the
Redemption Date.
SECTION 6.2. Acceleration of Maturity Date; Re-
scission and Annulment.
If an Event of Default (other than an Event of
Default specified in Section 6.1(5) or (6) relating to the
Company or any of its Significant Subsidiaries) occurs and
is continuing, then, and in every such case, unless the
principal of all of the Securities shall have already become
due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of then out-
standing Securities, by a notice in writing to the Company
(and to the Trustee if given by Holders) (an "Acceleration
Notice"), may declare all of the principal of the Securi-
ties, including in each case accrued interest thereon and
Additional Amounts, if any, with respect thereto, to be due
and payable immediately. If an Event of Default specified
in Section 6.1(5) or (6) relating to the Company or any
Significant Subsidiary occurs, all principal, accrued inter-
est thereon and Additional Amounts, if any, with respect
thereto will be immediately due and payable on all outstand-
ing Securities without any declaration or other act on the
part of the Trustee or the Holders.
At any time after such a declaration of accelera-
tion has been made and before a judgment or decree for pay-
ment of the money due has been obtained by the Trustee as
hereinafter provided in this Article VI, the Holders of no
less than a majority in aggregate principal amount of then
outstanding Securities, by written notice to the Company and
the Trustee, may rescind, on behalf of all Holders, any such
declaration of acceleration if:
(1) the Company has paid or deposited with
the Trustee Cash sufficient to pay
(A) all overdue interest
on, and Additional Amounts, if any, with
respect to, all Securities,
<PAGE>
(B) the principal of
(and premium, if any, applicable to) any
Securities which would then be due oth-
erwise than by such declaration of ac-
celeration, and interest thereon at the
rate borne by the Securities,
(C) to the extent that
payment of such interest is lawful, in-
terest upon overdue interest and Addi-
tional Amounts, if any, at the rate
borne by the Securities,
(D) all sums paid or
advanced by the Trustee hereunder and
the compensation, expenses, disburse-
ments and advances of the Trustee, its
agents and counsel, and
(2) all Events of Default, other than the
non-payment of the principal of, premium, if any, in-
terest on and Additional Amounts, if any, with respect
to Securities that have become due solely by such dec-
laration of acceleration, have been cured or waived as
provided in Section 6.12 hereof, including, if applica-
ble, any Event of Default relating to the covenants
contained in Section 3(d) of the Registered Securities
and the Bearer Securities.
Notwithstanding the previous sentence of this Section 6.2,
no waiver shall be effective against any Holder for any
Event of Default or Default with respect to any covenant or
provision which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected
thereby, unless all such affected Holders agree, in writing,
to waive such Event of Default or other event. No such
waiver shall cure or waive any subsequent Default or Event
of Default or impair any right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if an Event of Default
in payment of principal, premium, interest or Additional
Amounts specified in clause (1) or (2) of Section 6.1 hereof
occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on
such Securities for principal, premium (if any), interest,
Additional Amounts and, to the extent that payment of such
interest shall be legally enforceable, interest on any
overdue principal (and premium, if any), Additional Amounts
and on any overdue interest, at the rate borne by the Secu-
rities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including compensation to, and expenses, dis-
bursements and advances of, the Trustee, its agents and
counsel.
<PAGE>
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trust-
ee of an express trust in favor of the Holders, may insti-
tute 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 the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem
most effective 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, ar-
rangement, adjustment, composition or other judicial pro-
ceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or other-
wise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue princi-
pal, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise
to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole
amount of principal (and premium, if any), interest and
Additional Amounts owing and unpaid in respect of the Secu-
rities 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 compensa-
tion, expenses, disbursements and advances of the Trustee,
its agent and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) 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 hereof.
<PAGE>
Nothing herein contained shall be deemed to autho-
rize 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 Secu-
rities 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 Inden-
ture 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 in
favor of the Holders, and any recovery of judgment shall,
after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Hold-
ers of the Securities in respect of which such judgment has
been recovered.
SECTION 6.6. Priorities.
Any money collected by the Trustee pursuant to
this Article VI 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, premium
(if any), interest or Additional Amounts, 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 Trustee in payment of all amounts
due pursuant to Section 7.7 hereof;
SECOND: To the holders of Senior Indebtedness of
the Company to the extent provided in Article XII hereof;
THIRD: To the Holders in payment of the amounts
then due and unpaid for principal of, premium (if any),
interest on and Additional Amounts with respect to, the
Securities in respect 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, premium (if any), interest
and Additional Amounts, respectively; and
FOURTH: To whomsoever may be lawfully entitled
thereto, the remainder, if any.
The Trustee may fix a record date and payment date
for any payment by it to Holders pursuant to this Section.
<PAGE>
SECTION 6.7. Limitation on Suits.
No Holder of any Security shall have any right to
order or direct the Trustee 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;
(B) the Holders of not less than 25% in
principal amount of then outstanding Securities 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 security or indemnity against
the costs, expenses and liabilities to be incurred or
reasonably probable 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 then outstanding Securities;
it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 6.8. Unconditional Right of Holders to
Receive Principal, Premium, Interest and Additional Amounts.
Notwithstanding any other provision of this Inden-
ture, the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of the
principal of, and premium (if any), interest on and Addi-
tional Amounts with respect to, such Security when due (in-
cluding, in the case of redemption, the Redemption Price on
the applicable Redemption Date) and to institute suit for
the enforcement of any such payment after such respective
dates, and such rights shall not be impaired without the
consent of such Holder.
<PAGE>
SECTION 6.9. 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 hereof, 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 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any
Holder of any Security to exercise any right or remedy
arising upon any Event of Default shall impair the exercise
of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this
Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 6.11. Control by Holders.
The Holder or Holders of no less than a majority
in aggregate principal amount of then outstanding Securities
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 upon the
Trustee, provided, that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the
action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or would
subject the Trustee to any liability, and
(3) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent
with such direction.
<PAGE>
SECTION 6.12. Waiver of Past Default.
Subject to Section 6.8 hereof, the Holder or Hold-
ers of not less than a majority in aggregate principal
amount of then outstanding Securities may, on behalf of all
Holders, prior to the declaration of acceleration of the
maturity of the Securities, waive any past default hereunder
and its consequences, except a default
(A) in the payment of the principal of,
premium, if any, interest on, or Additional Amounts
with respect to, any Security not yet cured as speci-
fied in clauses (1) and (2) of Section 6.1 hereof, or
(B) in respect of a covenant or provi-
sion hereof which, under Article IX hereof, cannot be
modified or amended without the consent of the Holder
of each outstanding Security affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Inden-
ture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising
therefrom.
SECTION 6.13. 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 to be
taken by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.13 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 aggregate principal amount of then outstanding
Securities, or to any suit instituted by any Holder for en-
forcement of the payment of principal of, premium (if any),
interest on or Additional Amounts with respect to, any Secu-
rity on or after the Stated Maturity of such Security (in-
cluding, in the case of redemption, on or after the Redemp-
tion Date).
<PAGE>
SECTION 6.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Inden-
ture 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 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 there-
after all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been insti-
tuted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon
it by this Indenture and covenants and agrees to perform the
same, as herein expressed.
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an
Event of Default:
(1) The Trustee need perform only those
duties as are specifically set forth in this Indenture
and no others, and no covenants or obligations shall be
implied in or read into this Indenture which are ad-
verse to the Trustee.
(2) In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions ex-
pressed therein, upon certificates or opinions fur-
nished to the Trustee and conforming to the require-
ments of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect
of paragraph (b) of this Section 7.1.
<PAGE>
(2) The Trustee shall not be liable for any
error of judgment made in good faith by a Trust Offi-
cer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 6.11 hereof.
(d) No provision of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties hereunder or to take or omit to take
any action under this Indenture or at the request, order or
direction of the Holders or in the exercise of any of its
rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it.
(e) Every provision of this Indenture that
in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (d) and (f) of this Section 7.1.
(f) The Trustee shall not be liable for
interest on any assets received by it except as the Trustee
may agree in writing with the Company. Assets held in trust
by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not inves-
tigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from
acting, it may consult with counsel and may require an
Officers' Certificate or an Opinion of Counsel, which shall
conform to Sections 14.4 and 14.5 hereof, if applicable.
The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate
or advice of counsel.
(c) The Trustee may act through its attor-
neys and agents and shall not be responsible for the miscon-
duct or negligence of any agent appointed with due care.
(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
conferred upon it by this Indenture.
<PAGE>
(e) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
notice, request, direction, consent, order, bond, debenture,
or other paper or document, but the Trustee, in its discre-
tion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(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, order or direction of any of the
Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee rea-
sonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
(g) Unless otherwise specifically provided
for in this Indenture, any demand, request, direction or
notice from the Company shall be sufficient if signed by an
Officer of the Company.
(h) The Trustee shall have no duty to in-
quire as to the performance of the Company's covenants in
Article IV hereof. In addition, the Trustee shall not be
deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Sec-
tions 6.1(1) or 6.1(2), or (ii) any Default or Event of
Default of which a Trust Officer of the Trustee shall have
received written notification from the Company or any Holder
or obtained actual knowledge.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capaci-
ty may become the owner or pledgee of Securities and may
otherwise deal with the Company, any of its Subsidiaries, or
their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections
7.10 and 7.11 hereof.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities and
it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsi-
ble for any statement in the Securities, other than the
Trustee's certificate of authentication, or the use or
application of any funds received by a Paying Agent other
than the Trustee.
<PAGE>
SECTION 7.5. Notice of Default.
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee
shall give to Security Holders in accordance with Section
14.2 notice of the uncured Default or Event of Default
within 90 days after such Default or Event of Default oc-
curs. Except in the case of a Default or an Event of De-
fault in payment of principal (or premium, if any) of,
interest on or Additional Amounts with respect to, any Secu-
rity (including the payment of the Redemption Price on the
Redemption Date), the Trustee may withhold the notice if and
so long as a Trust Officer in good faith determines that
withholding the notice is in the interest of the
Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after each July 15 beginning with
the July 15 following the date of this Indenture, the Trust-
ee shall, if required by TIA Sec 313(a), transmit to the Hold-
ers a brief report dated as of such July 15 that complies
with TIA Sec 313(a). The Trustee also shall comply with TIA
Sec 313(b) and 313(c).
The Company shall promptly notify the Trustee in
writing if the Securities become listed on any stock ex-
change or automatic quotation system.
A copy of each report at the time of its mailing
to Securityholders shall be mailed to the Company and filed
with the SEC and each stock exchange, if any, on which the
Securities are listed.
Reports pursuant to this Section 7.6 shall be
transmitted by mail:
(1) to all holders of Registered
Securities as the names and addresses of such Holders
appear in the Security Register; and
(2) to other Holders of Securi-
ties as have, within the two years preceding such
transmission, filed their names and addresses with the
Trustee for such purpose.
SECTION 7.7. Compensation and Indemnity.
The Company agrees to pay to the Trustee from time
to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it.
Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents, accoun-
tants, experts and counsel.
<PAGE>
The Company agrees to indemnify the Trustee and
each of its officers, directors, attorneys-in-fact and
agents for, and hold it harmless against, any claim, demand,
expense (including but not limited to reasonable compen-
sation, disbursements and expenses of the Trustee's agents
and counsel), loss or liability incurred by it without
negligence or bad faith on its part, arising out of or in
connection with the administration of this trust and its
rights or duties hereunder including the reasonable costs
and expenses of defending itself against any claim or lia-
bility in connection with the exercise or performance of any
of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall provide reasonable
cooperation at the Company's expense in the defense. The
Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel; provided,
that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no
conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for
any settlement made without its written consent. The Compa-
ny need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in
this Section 7.7, the Trustee shall have a lien prior to the
Securities on all assets held or collected by the Trustee,
in its capacity as Trustee, except assets held in trust to
pay principal and premium, if any, of or interest on, or
Additional Amounts with respect to, particular Securities.
Without limiting any of the rights available to
the Trustee under applicable law, when the Trustee incurs
expenses or renders services after an Event of Default
specified in Section 6.1(5) or (6) hereof occurs, the ex-
penses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy
Law.
The Company's obligations under this Section 7.7
and any lien arising hereunder shall survive the resignation
or removal of the Trustee, the discharge of the Company's
obligations pursuant to Article VIII of this Indenture and
any rejection or termination of this Indenture under any
Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company
in writing. The Holder or Holders of a majority in princi-
pal amount of then outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the
Company's consent. The Company may remove the Trustee if:
<PAGE>
(a) the Trustee fails to comply with Section
7.10 hereof;
(b) the Trustee is adjudged bankrupt or
insolvent;
(c) a receiver, Custodian, or other 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
Holder or Holders of a majority in principal amount of then
outstanding Securities may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written accep-
tance of its appointment to the retiring Trustee and to the
Company. Immediately after that and provided that all sums
owing to the retiring Trustee provided for in Section 7.7
have been paid, the retiring Trustee shall transfer all
property held by it as trustee to the successor Trustee,
subject to the lien provided 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 under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within
60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holder or Holders
of at least 10% in principal amount of then outstanding
Securities may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10,
any Securityholder who has been a bonafide holder of a
Security for at least 6 months may petition any court of
competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursu-
ant to this Section 7.8, the Company's obligations under
Section 7.7 hereof shall continue for the benefit of the
retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or con-
verts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the re-
sulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or trans-
feree corporation is otherwise eligible hereunder, be the
successor Trustee.
<PAGE>
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the re-
quirements of TIA Sec 310(a)(1), (2) and (5). The Trustee
shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with
TIA Sec 310(b), subject to the penultimate paragraph thereof.
SECTION 7.11. Preferential Collection of Claims
Against Company.
The Trustee shall comply with TIA Sec 311(a), ex-
cluding 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.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1. Satisfaction and Discharge of In-
denture.
The Company may terminate its obligations under
this Indenture (subject to the provisions of this
Article VIII) when it shall have delivered to the Trustee
for cancellation all Securities theretofore authenticated
and all Coupons appertaining thereto (other than any Securi-
ties and Coupons which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provid-
ed in Article II hereof or any Securities referred to in
Section 8.2) and the following conditions shall be satis-
fied:
(1) The Company has paid all sums payable
under the Indenture; and
(2) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel
in the United States, each stating that all conditions
precedent have been complied with as contemplated by this
Section 8.1.
SECTION 8.2. Repayment to the Company.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, for the payment of the
principal of, premium, if any, interest on or Additional
Amounts with respect to any Security and remaining unclaimed
for two years after such principal, premium, if any, inter-
est or Additional Amounts has become due and payable shall
be paid to the Company on its request; and the Holder of
such Security shall thereafter look only to the Company for
payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereup-
on cease.
<PAGE>
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holder, the Company,
when authorized by Board Resolutions, and the Trustee, at
any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or incon-
sistency, or to make any other provisions with respect to
matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Inden-
ture, provided, that such action pursuant to this clause (1)
does not adversely affect the interests of any Holder in any
respect;
(2) to create additional covenants of the
Company for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company or to make
any other change that does not adversely affect the rights
of any Holder, provided, that the Company has delivered to
the Trustee an Opinion of Counsel stating that such change
pursuant to this clause (2) does not adversely affect the
rights of any Holder;
(3) to provide for collateral for or guaran-
tors of the Securities;
(4) to evidence the succession of another
Person to the Company and the assumption by any such succes-
sor of the obligations of the Company herein and in the
Securities in accordance with Article V;
(5) to comply with the TIA; or
(6) to comply with Section 13.6.
SECTION 9.2. Amendments, Supplemental Indentures
and Waivers with Consent of Holders.
<PAGE>
Subject to Section 6.8 and the last sentence of
this paragraph, with the consent (evidenced as provided in
Section 10.2 hereof) of the Holders of not less than a
majority in aggregate principal amount of then outstanding
Securities, by written act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by
Board Resolutions, and the Trustee may amend or supplement
this Indenture or the Securities or enter into an indenture
or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or the Securities or
of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.8
and the last sentence of this paragraph, the Holder or Hold-
ers of not less than a majority in aggregate principal
amount of then outstanding Securities may, in writing, waive
compliance by the Company with any provision of this Inden-
ture or the Securities. Notwithstanding any of the above,
however, no such amendment, supplemental indenture or waiver
shall, without the consent of the Holder of each outstanding
Security affected thereby:
(1) change the Stated Maturity of any Secu-
rity or reduce the principal amount thereof or the rate (or
extend the time for payment) of interest thereon or any
premium payable upon the redemption thereof or Additional
Amounts with respect thereto, or change the place of payment
where, or the coin or currency in which, any Security or any
premium or the interest thereon or Additional Amounts with
respect thereto is payable, or impair the right to institute
suit for the enforcement of any such payment or the conver-
sion of any Security on or after the due date thereof (in-
cluding, in the case of redemption, on or after the Redemp-
tion Date), or alter redemption provisions in a manner ad-
verse to the Holders;
(2) reduce the percentage in principal
amount of the outstanding Securities, the consent of whose
Holders is required for any such amendment, supplemental
indenture or waiver provided for in the Indenture;
(3) modify any of the provisions of Article
XII hereof in a manner adverse to the Holders;
(4) adversely affect the right of such
Holder to convert Securities; or
(5) modify any of the waiver provisions,
except to increase any required percentage or to provide
that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular
form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance
thereof.
<PAGE>
After an amendment, supplement or waiver under
this Section 9.2 becomes effective, the Company shall give
to the Holders in accordance with Section 14.2 a notice
briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under
this Section 9.2 becomes effective, it shall bind each
Holder.
In connection with any amendment, supplement or
waiver under this Article IX, the Company may, but shall not
be obligated to, offer to any Holder who consents to such
amendment, supplement or waiver, or (at the option of the
Company) to all Holders, consideration for consent to such
amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this
Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder 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 his Security by written notice
to the Company or the Person designated by the Company as
the Person to whom consents should be sent if such revo-
cation is received by the Company or such Person before the
date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiv-
er.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders
entitled to consent to any amendment, supplement or waiver,
which record date shall be the date so fixed by the Company
notwithstanding the provisions of the TIA. If a record date
is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were
Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke
any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days
after such record date.
<PAGE>
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder; provided,
that any such waiver shall not impair or affect the right of
any Holder to receive payment of principal and premium of
and interest on and Additional Amounts with respect to a
Security, on or after the respective dates set for such
amounts to become due and payable expressed in such Securi-
ty, or to bring suit for the enforcement of any such payment
on or after such respective dates without the consent of
such Holder.
SECTION 9.5. Notation on or Exchange of Securi-
ties.
If an amendment, supplement or waiver changes the
terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee or require the
Holder to put an appropriate notation on the Security. The
Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alter-
natively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the
changed terms. Any failure to make the appropriate notation
or to issue a new Security shall not affect the validity of
such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise. The Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amend-
ment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture.
ARTICLE X
MEETINGS
SECTION 10.1. Meetings and Votes of Holders.
(a) A meeting of Holders of Securities may
be called at any time and from time to time pursuant to this
Section 10.1 for any of the following purposes: (i) to give
any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of
any Default hereunder and its consequences, or to take any
other action authorized to be taken by Holders of Securities
pursuant to Article IX hereof; or (ii) to take any other
action authorized to be taken by or on behalf of the Holders
of any specified aggregate principal amount of the Securi-
ties under any other provision of this Indenture, the Regis-
tered Securities and Bearer Securities or under applicable
law.
<PAGE>
(b) Meetings of Holders of Securities may be
held at such place or places in New York City or London as
the Trustee or, in case of its failure to act, the Company
or the Holders calling the meeting shall from time to time
determine.
(c) The Trustee may at any time call a meet-
ing of Holders of Securities to be held at such time and at
such place in any of the locations designated in Section
10.1(b) hereof as the Trustee shall determine. Notice of
every meeting of Holders shall be made as specified in
Section 14.2 hereof, except that such notice shall set forth
the time and the place of such meeting, in general terms the
action proposed to be taken at such meeting and a general
description of regulations applicable to such meeting and
shall be published at least three times in the publications
specified in such Section 14.2, the first publication to be
not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(d) In case at any time the Company or the
Holders of at least 25% in aggregate principal amount of the
Securities shall have requested the Trustee to call a meet-
ing of the Holders, by written request setting forth in rea-
sonable detail the action proposed to be taken at the meet-
ing, and the Trustee shall not have given the first notice
of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of
Securities in the amount above specified may determine the
time and the place in either of the locations designated in
Section 10.1(b) hereof for such meeting and may call such
meeting to take any action authorized in Section 10.1(a)
hereof by giving notice thereof as provided in Section
10.1(c) hereof.
(e) To be entitled to vote at any meeting of
Holders of Securities, a person shall be (i) a Holder of one
or more Securities, or (ii) a person appointed by an instru-
ment in writing as proxy for a Holder or Holders of Securi-
ties by such Holder or Holders, which proxy need not be a
Holder of Securities. The only persons who shall be enti-
tled to be present or to speak at any meeting of Holders
shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its
counsel.
(f) The persons entitled to vote a majority
in principal amount of the outstanding Securities shall con-
stitute a quorum for the transaction of all business speci-
fied in Section 10.1(a) hereof. No business shall be trans-
acted in the absence of a quorum unless a quorum is repre-
sented when the meeting is called to order. In the absence
<PAGE>
of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request
of the Holders of Securities (as provided in Section 10.1(d)
hereof), be dissolved. In any other case the meeting shall
be adjourned for a period of not less than 10 days as deter-
mined by the chairman of the meeting prior to the adjourn-
ment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting (except pursuant to Sec-
tion 10.1(j)) shall be given as provided in Section 10.1(c)
hereof except that such notice need be published only once
but must be given not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Subject
to the foregoing, at the reconvening of any meeting ad-
journed for a lack of a quorum the persons entitled to vote
25% in principal amount of the Securities shall constitute a
quorum for the taking of any action set forth in the notice
of the original meeting. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of
the aggregate principal amount of the Securities that shall
constitute a quorum. At a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as afore-
said, any resolution and all matters (except as limited by
Section 6.8 and the last sentence of the first paragraph of
Section 9.2 hereof) shall be effectively passed and decided
if passed or decided by the persons entitled to vote a ma-
jority in principal amount of the Securities represented and
voting at such meeting, provided that such amount shall be
not less than 25% in principal amount of the Securities
outstanding. Any Holder of a Security who has executed an
instrument in writing appointing a person as his proxy shall
be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, however, that
such Holder shall be considered as present or voting only
with respect to the matters covered by such instrument in
writing. Any resolution passed or decision taken at any
meeting of the Holders of Securities duly held in accordance
with this Section 10.1 shall be binding on all the Holders
of Securities whether or not present or represented at the
meeting.
(g) Notwithstanding any other provision of
this Indenture, the Trustee may make such reasonable regula-
tions as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of Securities
and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submis-
sion and examination of proxies, certificates and other
evidence of the right to vote, and such other matters con-
cerning the conduct of the meeting as it shall deem appro-
priate. Except as otherwise permitted or required by any
such regulations, the holding of Bearer Securities shall be
proved by the production of the Bearer Securities or by a
certificate executed, as depositary, by, and the appointment
of any proxy shall be proved by having the signature of the
person executing the proxy witnessed or guaranteed by, in
each case, any trust company, bank or banker satisfactory to
<PAGE>
the Trustee. Such regulations may provide that written in-
struments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified
herein or other proof. The holding of Registered Securities
shall be proved by the registry books maintained in accor-
dance with Section 2.3 hereof or by a certificate or cer-
tificates of the Trustee in its capacity as the Company's
agent for the maintenance of such books.
(h) The Trustee shall, by an instrument in
writing, appoint a temporary chairperson of the meeting,
unless the meeting shall have been called by the Company or
by the Holders of Securities as provided in Section 10.1(d)
hereof, in which case the Company or the Holders calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a perma-
nent secretary of the meeting shall be elected by vote of
the Holders of a majority in principal amount of the Securi-
ties represented at the meeting and entitled to vote.
(i) At any meeting each Holder or proxy
shall be entitled to one vote for each U.S.$1,000 principal
amount of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meet-
ing in respect of any Securities challenged as not outstand-
ing and ruled by the chairperson of the meeting to be not
outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder or proxy.
(j) Any meeting of Holders of Securities
duly called pursuant to Section 10.1(c) or 10.1(d) hereof at
which a quorum is present may be adjourned from time to time
by vote of the Holders (or proxies for the Holders) of a
majority in principal amount of the Securities represented
at the meeting and entitled to vote; and the meeting may be
held as so adjourned without further notice.
(k) The vote upon any resolution submitted
to any meeting of Holders of Securities shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy
and the serial number or numbers of the Securities held or
represented by them. The permanent chairperson of the meet-
ing shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meet-
ing their verified written reports in duplicate of all votes
cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities
shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the
<PAGE>
facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided in Sec-
tion 10.1(c) or 10.1(d) hereof and, if applicable, Section
10.1(f) hereof. Each copy shall be signed and verified by
the affidavits of the permanent chairperson and secretary of
the meeting, and one such copy shall be delivered to the
Company and another to the Trustee to be preserved by the
Trustee, the copy delivered to the Trustee to have attached
thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.2. Action by Holders. Subject to
Section 14.6, whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action (including the
making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the
fact that at the time of taking any such action the Holders
of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments
of similar tenor executed by Holders in person or by agent
or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the provi-
sions of Section 10.1 hereof, or (c) by a combination of
such instrument or instruments and any such record of such a
meeting of Holders.
ARTICLE XI
AGENTS
SECTION 11.1. Offices, Resignation, Successors,
Etc. of Agents; Paying, Conversion and Transfer Agencies.
(a) Each of the Agents may at any time
resign as such Agent by giving written notice to the Company
of such intention on its part, specifying the date in which
its desired resignation shall become effective; provided,
however, that such date shall never be less than ninety days
after receipt of such notice by the Company unless the
Company agrees to accept less notice. Each of the Agents
hereunder may be removed at any time by the filing with it
of any instrument in writing signed on behalf of the Company
and specifying such removal and the date when it is intended
to become effective. Such resignation or removal shall take
effect upon the date of the appointment by the Company, as
hereinafter provided, of a successor Conversion Agent,
Transfer Agent or Paying Agent, as the case may be, and the
acceptance of such appointment by such successor Agent.
Upon its resignation or removal, each of the Agents shall be
entitled to the payment by the Company of its compensation
for the services rendered hereunder and to the reimbursement
of all reasonable out-of-pocket expenses incurred in con-
nection with the services rendered hereunder by such Agent.
<PAGE>
(b) In case at any time any of the Agents
shall resign, or shall be removed, or shall be incapable of
acting, or shall file a voluntary petition as a debtor under
Chapter 7 or 11 of Title 11 of the United States Code or
have an order for relief entered against it as a debtor
under Chapter 7 or 11 of Title 11 of the United States Code
or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver of all or any
substantial part of its property, or shall admit in writing
its inability to pay or meet its debts as they mature, or if
an order of any court shall be entered approving any peti-
tion filed by or against any of the Agents under any leg-
islation similar to the provisions of Title 11 of the United
States Code, or if a receiver of it or of all or any sub-
stantial part of its property shall be appointed, or if any
public officer shall take charge or control of it or of its
property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Agent, qualified as
aforesaid, shall be appointed by the Company by an instru-
ment in writing. Upon the appointment as aforesaid of a
successor Agent and acceptance by it of such appointment,
the Agent so superseded shall cease to be such Agent hereun-
der. If no successor Agent shall have been so appointed by
the Company and shall have accepted appointment as here-
inafter provided, any Holder of a Security, on behalf of
itself and all others similarly situated, or any Agent may
petition any court of competent jurisdiction for the ap-
pointment of a successor Agent and shall promptly notify the
Company of such action.
(c) Any successor Conversion Agent, Transfer
Agent or Paying Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Com-
pany an instrument accepting such appointment hereunder, and
thereupon such successor Agent, without any further act,
deed or conveyance, shall become vested with all the author-
ity, rights, powers, trusts, immunities, duties and obliga-
tions of such predecessor with like effect as if originally
named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay
over, and such successor Agent shall be entitled to receive,
all monies, securities or other property on deposit with or
held by such predecessor, as such Agent hereunder.
(d) Any corporation or bank into which any
of the Agents hereunder may be merged or converted, or any
corporation or bank with which such Agent may be consoli-
dated, or any corporation or bank resulting from any merger,
conversion or consolidation to which such Agent shall be a
party, or any corporation or bank to which such Agent shall
sell or otherwise transfer all or substantially all the
assets and business of such Agent, shall be the successor to
such Agent under this Indenture without the execution or
filing of any document or any further act on the part of any
of the parties hereto.
<PAGE>
ARTICLE XII
SUBORDINATION
SECTION 12.1. Securities Subordinated to Senior
Indebtedness.
The Company and each Holder, by its acceptance of
Securities, agree that (a) the payment of the principal of
and interest on, or Additional Amounts with respect to, the
Securities and (b) any other payment in respect of the
Securities, including on account of the acquisition or re-
demption of the Securities by the Company (including, with-
out limitation, pursuant to Section 3(d) of the Registered
Securities and the Bearer Securities) is subordinated, to
the extent and in the manner provided in this Article XII,
to the prior payment in full of all Senior Indebtedness of
the Company, and all other Obligations in respect thereof,
whether outstanding at the date of this Indenture or there-
after created, incurred, assumed or guaranteed, and that
these subordination provisions are for the benefit of the
holders of Senior Indebtedness.
This Article XII shall constitute a continuing
offer to all Persons who, in reliance upon such provisions,
become holders of, or continue to hold, Senior Indebtedness,
and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees
hereunder and any one or more of them may enforce such
provisions.
To the extent any provision of this Article XII
conflicts or is inconsistent with any other provision of
this Indenture, the provisions of this Article XII shall
govern and supersede such inconsistent or conflicting provi-
sion.
SECTION 12.2. No Payment on Securities in Certain
Circumstances.
(a) No payment may be made by the Company on
account of the principal of, premium, if any, interest on,
or Additional Amounts with respect to, the Securities, or to
acquire any of the Securities (including redemptions of
Securities at the option of the Holder) for cash or property
(other than Junior Securities), or on account of the redemp-
tion provisions of the Securities, (i) upon the maturity of
any Senior Indebtedness of the Company by lapse of time,
acceleration (unless waived) or otherwise, unless and until
all principal of, premium, if any, and interest on such
Senior Indebtedness and all other Obligations in respect
thereof are first paid in full (or such payment is duly pro-
vided for), or (ii) in the event of default in the payment
of any principal of, premium, if any, or interest on, or any
other Obligation in respect of, any Senior Indebtedness of
the Company when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration
or otherwise (a "Payment Default"), unless and until such
Payment Default has been cured or waived by the holders of
such Senior Indebtedness or otherwise has ceased to exist.
<PAGE>
(b) Upon (i) the happening of an event of
default (other than a Payment Default) that permits the
holders of any Designated Senior Indebtedness or their
representative immediately to accelerate its maturity and
(ii) written notice of such event of default given to the
Company and the Trustee by the requisite holders of such
Designated Senior Indebtedness or their representative (a
"Payment Notice"), then, unless and until such event of
default has been cured or waived by the requisite holders of
such Senior Indebtedness or otherwise has ceased to exist,
no payment (by set-off or otherwise) may be made by or on
behalf of the Company on account of the principal of, premi-
um, if any, interest on, or Additional Amounts with respect
to, the Securities, or to acquire or repurchase any of the
Securities for cash or property, or on account of the re-
demption provisions of the Securities, in any such case
other than payments made with Junior Securities of the
Company. Notwithstanding the foregoing, unless (I) the
Designated Senior Indebtedness in respect of which such
event of default exists has been declared due and payable in
its entirety within 179 days after the Payment Notice is
delivered as set forth above (the "Payment Blockage Peri-
od"), and (II) such declaration has not been rescinded or
waived by the requisite holders of such Senior Indebtedness,
at the end of the Payment Blockage Period, the Company shall
be required to pay all sums not paid to the Holders of the
Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume, subject to this Arti-
cle XII, all other payments as and when due on the Securi-
ties. Any number of Payment Notices may be given; provided,
however, that (A) not more than one Payment Notice shall be
given within a period of any 360 consecutive days, and
(B) no default that existed upon the date of such Payment
Notice or the commencement of such Payment Blockage Period
(whether or not such event of default is on the same issue
of Designated Senior Indebtedness) shall be made the basis
for the commencement of any other Payment Blockage Period.
(c) In furtherance of the provisions of Sec-
tion 12.1, in the event that, notwithstanding the foregoing
provisions of this Section 12.2, any payment or distribution
of assets of the Company (other than Junior Securities)
shall be received by the Trustee or the Holders or any
Paying Agent at a time when such payment or distribution is
prohibited by the provisions of this Section 12.2, then such
payment or distribution shall be received and held in trust
by the Trustee or such Holder or Paying Agent (or, if the
Company or any Affiliate of the Company is acting as its own
Paying Agent, money for any such payment or distribution
shall be segregated or held in trust) for the benefit of the
holders of Senior Indebtedness of the Company, and shall be
paid or delivered by the Trustee or such Holders or such
Paying Agent, as the case may be, to the holders of Senior
<PAGE>
Indebtedness of the Company remaining unpaid or unprovided
for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which
any instruments evidencing any of such Senior Indebtedness
of the Company may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the
Senior Indebtedness of the Company held or represented by
each, for application to the payment of all Senior Indebted-
ness of the Company in full after giving effect to any con-
current payment and distribution to the holders of such
Senior Indebtedness, but only to the extent that as to any
holder of such Senior Indebtedness, as promptly as practical
following receipt by such holder of written notice from the
Trustee to the holders of such Senior Indebtedness that such
prohibited payment has been received by the Trustee, Hold-
er(s) or Paying Agent (or has been segregated as provided
above), such holder (or a representative therefor) notifies
the Trustee of the amounts then due and owing on such Senior
Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be
paid to the holders of such Senior Indebtedness.
SECTION 12.3. Securities Subordinated to Prior
Payment of All Senior Indebtedness on Dissolution, Liqui-
dation or Reorganization.
Upon any distribution of assets of the Company
upon any dissolution, winding up, total or partial liqui-
dation or reorganization of the Company, whether voluntary
or involuntary, in bankruptcy, insolvency, receivership or a
similar proceeding or upon assignment for the benefit of
creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Indebtedness
of the Company shall first be entitled to receive payments
in full (or have such payment duly provided for) before the
Holders are entitled to receive any payment on account of
the principal of, premium, if any, interest on, and Addi-
tional Amounts with respect to, the Securities (other than
Junior Securities);
(b) any payment or distribution of assets of
the Company of any kind or character, whether in cash,
property or securities (other than Junior Securities) to
which the Holders or the Trustee on behalf of the Holders
would be entitled (by setoff or otherwise), except for the
provisions of this Article XII, shall be paid by the liqui-
dating trustee or agent or other Person making such a pay-
ment or distribution directly to the holders of Senior
Indebtedness of the Company or their representative to the
extent necessary to make payment in full of all such Senior
Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such
Senior Indebtedness; and
<PAGE>
(c) in the event that, notwithstanding the
foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property
or securities (other than Junior Securities), shall be re-
ceived by the Trustee or the Holders or any Paying Agent
(or, if the Company or any Affiliate of the Company is
acting as its own Paying Agent, money for any such payment
or distribution shall be segregated or held in trust) on ac-
count of the principal of, premium, if any, interest on, or
Additional Amounts with respect to, the Securities before
all Senior Indebtedness of the Company is paid in full, such
payment or distribution shall be received and held in trust
by the Trustee or such Holder or Paying Agent (or, if the
Company or any Affiliate of the Company is acting as its own
Paying Agent, money for any such payment or distribution
shall be segregated or held in trust) for the benefit of the
holders of such Senior Indebtedness, or their respective
representative, or the trustee or trustees under any inden-
ture pursuant to which any instruments evidencing any of
such Senior Indebtedness of the Company may have been is-
sued, ratably according to the respective amounts of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment as provided herein of all
such Senior Indebtedness remaining unpaid after giving
effect to all concurrent payments and distributions and all
provisions therefor to or for the holders of such Senior
Indebtedness, but only to the extent that as to any holder
of such Senior Indebtedness, as promptly as practical fol-
lowing receipt by such holder of written notice from the
Trustee to the holders of such Senior Indebtedness that such
prohibited payment has been received by the Trustee, Hold-
er(s) or Paying Agent (or has been segregated as provided
above), such holder (or a representative therefor) notifies
the Trustee of the amounts then due and owing on such Senior
Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be
paid to the holders of such Senior Indebtedness.
SECTION 12.4. Securityholders to Be Subrogated to
Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness of the Company as provided herein, the Holders
of Securities shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the
Senior Indebtedness until all amounts owing on the Securi-
ties shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders
of such Senior Indebtedness by the Company, or by or on
behalf of the Holders by virtue of this Article XII, which
otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment
by the Company on account of such Senior Indebtedness, it
being understood that the provisions of this Article XII are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.
<PAGE>
If any payment or distribution to which the Hold-
ers would otherwise have been entitled but for the provi-
sions of this Article XII shall have been applied, pursuant
to the provisions of this Article XII, to the payment of
amounts payable under Senior Indebtedness of the Company,
then the Holders shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distri-
butions received by such holders of Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable
under or in respect of such Senior Indebtedness in full.
SECTION 12.5. Obligations of the Company Uncondi-
tional.
Nothing contained in this Article XII or elsewhere
in this Indenture or in the Securities is intended to or
shall impair as between the Company and the Holders, the
obligation of each such Person, which is absolute and uncon-
ditional, to pay to the Holders the principal of, premium,
if any, interest on, and Additional Amounts with respect to,
the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and credi-
tors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent
the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this
Article XII, of the holders of Senior Indebtedness in re-
spect of cash, property or securities of the Company re-
ceived upon the exercise of any such remedy. Notwithstand-
ing anything to the contrary in this Article XII or else-
where in this Indenture or in the Securities, upon any
distribution of assets of the Company referred to in this
Article XII, the Trustee, subject to the provisions of
Sections 7.1 and 7.2, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquida-
tion or reorganization proceedings are pending, or a certif-
icate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for
the purpose of ascertaining the Persons entitled to partici-
pate in such distribution, the holders of the Senior Indebt-
edness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or
to this Article XII so long as such court has been apprised
of the provisions of, or the order, decree or certificate
makes reference to, the provisions of this Article XII. The
Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a
holder of Senior Indebtedness (or a trustee or representa-
tive on behalf of such holder) to establish that such a
<PAGE>
notice has been given by a holder of Senior Indebtedness (or
a trustee or representative on behalf of such holder). In
the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XII,
the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such person, as to the extent
to which such person is entitled to participate in such
payment or distribution, and as to other facts pertinent to
the rights of such person under this Article XII, and if
such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to
the right of such person to receive such payment. Nothing
in this Article XII shall apply to the claims of, or pay-
ments to, the Trustee under or pursuant to Section 7.7.
SECTION 12.6. Trustee Entitled to Assume Payments
Not Prohibited in Absence of Notice.
The Trustee or any Paying Agent (other than the
Company acting as its own Paying Agent) shall not at any
time be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the
Trustee or such Paying Agent unless and until a Trust Offi-
cer of the Trustee or such Paying Agent (other than the
Company acting as its own Paying Agent), as the case may be,
shall have received, no later than one Business Day prior to
such payment, written notice thereof from the Company or
from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions
of Sections 7.1 and 7.2, and such Paying Agent shall be
entitled in all respects conclusively to assume that no such
fact exists.
SECTION 12.7. Application by Trustee of Assets
Deposited with It.
Any deposit of assets with the Trustee or the
Agent (whether or not in trust) for the payment of principal
of or interest on, or Additional Amounts with respect to,
any Securities shall be subject to the provisions of Sec-
tions 12.1, 12.2, 12.3 and 12.4; provided that, if prior to
one Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for
any purpose (including, without limitation, the payment of
either principal of or interest on any Security) the Trustee
or a Paying Agent shall not have received with respect to
such assets the written notice provided for in Section 12.6,
then the Trustee or such Paying Agent shall have full power
and authority to receive such assets and to apply the same
to the purpose for which they were received, and shall not
be affected by any notice to the contrary which may be re-
ceived by it on or after such date.
<PAGE>
SECTION 12.8. Subordination Rights Not Impaired
by Acts or Omissions of the Company or Holders of Senior
Indebtedness.
No right of any present or future holders of any
Senior Indebtedness to enforce subordination provisions con-
tained in this Article XII shall at any time in any way be
prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the
Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness
may extend, renew, modify or amend the terms of the Senior
Indebtedness or any security therefor and release, sell or
exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obliga-
tions of the parties to this Indenture or the Holders.
SECTION 12.9. Securityholders Authorize Trustee
to Effectuate Subordination of Securities.
Each Holder of the Securities by his acceptance
thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appro-
priate to effectuate the subordination provisions contained
in this Article XII and to protect the rights of the Holders
pursuant to this Indenture, and appoints the Trustee its
attorney-in-fact for such purpose, including, in the event
of any dissolution, winding up, liquidation or reorganiza-
tion of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the
benefit of creditors of the Company), the making of a timely
filing of a claim for the unpaid balance of its Securities
in the form required in said proceedings and cause said
claim to be approved. If the Trustee does not file a proper
claim or proof of debt in the form required in such proceed-
ing prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of the Senior
Indebtedness or their representative are or is hereby autho-
rized to have the right to file and are or is hereby autho-
rized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior
Indebtedness or their representative to authorize or consent
to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composi-
tion affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of
Senior Indebtedness or their representative to vote in
respect of the claim of any Securityholder in any such
proceeding.
<PAGE>
SECTION 12.10. Right of Trustee to Hold Senior
Indebtedness.
The Trustee shall be entitled to all of the rights
set forth in this Article XII in respect of any Senior In-
debtedness at any time held by it to the same extent as any
other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
SECTION 12.11. Article XII Not to Prevent Events
of Default.
The failure to make a payment on account of prin-
cipal of, premium, if any, interest on, or Additional
Amounts with respect to, the Securities by reason of any
provision of this Article XII shall not be construed as
preventing the occurrence of a Default or an Event of De-
fault under Section 6.1 or in any way prevent the Holders or
the Trustee from exercising any right hereunder other than
the right to receive payment on the Securities.
SECTION 12.12. No Fiduciary Duty of Trustee to
Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fidu-
ciary duty to the holders of Senior Indebtedness, and shall
not be liable to any such holders (other than for its will-
ful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securi-
ties or the Company or any other Person, cash, property or
securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article XII or otherwise.
Nothing in this Section 12.12 shall affect the obligation of
any other such Person to hold such payment for the benefit
of, and to pay such payment over to, the holders of Senior
Indebtedness or their representative.
<PAGE>
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1. Conversion Privilege.
Subject to and upon compliance with the provisions
of this Article XIII, at the option of the holder thereof,
any outstanding Registered Security or Bearer Security or,
in the case of any Registered Security or Bearer Security of
a denomination other than $1,000, any portion of the prin-
cipal amount thereof which is $1,000 or an integral multiple
of $1,000, may be converted on or after the Exchange Date
and prior to the Stated Maturity thereof, at the principal
amount thereof, or of such portion thereof, into fully paid
and nonassessable shares of Common Stock ("Conversion
Shares") as set forth in the Registered Securities and
Bearer Securities. The right to convert Securities called
for redemption or delivered for repurchase will terminate at
the close of business on the fifth day next preceding the
Redemption Date (or if such date is not a Business Day, on
the next succeeding Business Day) and will be lost if not
exercised prior to that time. The price at which shares of
Common Stock shall be delivered upon conversion (herein
called the "Conversion Price") shall be initially $36.75 per
share of Common Stock. The Conversion Price shall be ad-
justed in certain instances as provided in paragraphs
(c)(i), (ii), (iii), (iv), (v) and (vi) of Section 4 of the
Registered Securities and Bearer Securities.
SECTION 13.2. Exercise of Conversion Privilege.
(a) In order to exercise the conversion
privilege, the Holder of any Security to be converted shall
surrender such Security, together with all unmatured Cou-
pons, if any, and any matured Coupons in default appertain-
ing thereto, if any, at the office of the Conversion Agent
or any office or agency of the Company maintained for that
purpose pursuant to Section 4.2 hereof, accompanied by writ-
ten notice, in substantially the form set forth in the
Registered Securities and the Bearer Securities, to the Com-
pany, at such office or agency that the Holder elects to
convert such Security or, if less than the entire principal
amount of a Registered Security or Bearer Security of a
denomination other than $1,000 is to be converted, the
portion thereof to be converted. Upon presentment for
conversion of any Securities pursuant to this Section 13.2,
the Conversion Agent shall immediately on that day notify
the Company of such presentment. No payment or adjustment
shall be made upon any conversion on account of any divi-
dends on the Common Stock issued upon conversion. If a
<PAGE>
Registered Security is converted after the close of business
on an Interest Record Date and before the opening of busi-
ness on the next succeeding Interest Payment Date, the
interest due on such Interest Payment Date shall be paid on
such Interest Payment Date to the person in whose name that
security is registered at the close of business on that
Interest Record Date. Except as otherwise provided in the
immediately preceding sentence, no payment or adjustment
shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on
account of any dividends or distributions on the Conversion
Shares issued upon conversion. Registered Securities sur-
rendered for conversion during the period after the close of
business on any Interest Record Date next preceding any
Interest Payment Date to the close of business on such
Interest Payment Date shall (except in the case of Regis-
tered Securities or portions thereof which are called for
redemption on a Redemption Date within such period) be
accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal
amount being surrendered for conversion.
(b) Securities shall be deemed to have been
converted immediately prior to the close of business on the
day of surrender of such Securities for conversion in accor-
dance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall
cease, and the person or persons entitled to receive the
Common Stock issuable upon conversion shall be treated for
all purposes as the record holder or holders of such Common
Stock at such time. As promptly as practicable on or after
the conversion date, the Company shall cause to be issued or
delivered at such office or agency a certificate or certifi-
cates for the number of full shares of Common Stock issuable
or deliverable upon conversion, together with payment, in
lieu of any fraction of a share, as provided below.
(c) In the case of any Registered Security
or Bearer Security of a denomination other than $1,000 is
converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a new
Security or Securities of any authorized kind or denomina-
tion as requested by such Holder, in aggregate principal
amount equal to the unconverted portion of the principal
amount of such Security.
<PAGE>
SECTION 13.3. Fractional Interests.
No fractional shares of Common Stock shall be
issued or delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which
shall be issuable or deliverable upon conversion thereof
shall be computed on the basis of the aggregate principal
amount of the Securities (or, in the case of Registered
Securities or Bearer Securities of a denomination other than
$1,000, specified portions thereof) so surrendered. Instead
of any fractional share of Common Stock which would other-
wise be issuable or deliverable upon conversion of any
Security or Securities (or, in the case of Registered Secu-
rities or Bearer Securities of a denomination other than
$1,000, specified portions thereof), the Company shall pay a
cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Closing Price per share of
Common Stock at the close of business on the day preceding
the day of conversion.
SECTION 13.4. Adjustment of Conversion Price.
(a) Whenever the Conversion Price is ad-
justed as provided in the Registered Securities and Bearer
Securities:
(i) the Company shall compute the adjusted
Conversion Price in accordance with the terms of the
Registered Securities and Bearer Securities and shall
prepare a certificate signed by the President, any Vice
President or the Treasurer of the Company setting forth
the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed with the
Trustee and the Conversion Agent and at each office or
agency maintained for the purpose of conversion of
Securities pursuant to Section 4.2 hereof; and
(ii) a notice stating that the Conversion
Price has been adjusted and setting forth the adjusted
Conversion Price shall forthwith be required, and, as
soon as practicable after it is required, the Company
shall promptly cause a notice setting forth the adjust-
ed Conversion Price to be given to the holders of the
Securities as provided in Section 14.2 hereof.
SECTION 13.5. Notice of Certain Events.
In case:
(i) the Company shall declare a
dividend (or any other distribution) on its Common
Stock payable otherwise than in cash out of its
retained earnings (excluding dividends payable in
stock for which adjustment is made pursuant to the
terms of the Registered Securities and Bearer
Securities); or
<PAGE>
(ii) the Company shall authorize the
granting to the holders of its Common Stock of rights
or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(iii) of any reclassification of the
Common Stock of the Company (other than a subdivision
or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the
Company is a party and for which approval of any stock-
holders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of
the Company; or
(iv) of the involuntary dissolu-
tion, liquidation or winding up of the Company; or
(v) the Company proposes to take
any other action which would require an adjustment
of the Conversion Price pursuant to the Registered
Securities and Bearer Securities;
then the Company shall cause to be filed with the Conversion
Agent and at each office or agency maintained for the pur-
pose of conversion of Securities a notice setting forth the
adjusted Conversion Price and shall cause notice to be given
as provided in Section 14.2 hereof except that notice need
be given to the Holders once at least 20 days (or 10 days in
any case specified in clause (i) or (ii) above) prior to the
applicable record date hereinafter specified, stating (x)
the date on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants or, if a
record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants is to be determined, or (y)
the date on which a reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for the
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. The failure to give
notice required by this Section 13.5 or any defect therein
shall not affect the legality or validity of any dividend,
distribution, rights, warrants, reclassification, consolida-
tion, merger, sale, transfer, dissolution, liquidation or
winding up, or the vote on any such action.
SECTION 13.6. Continuation of Conversion Privi-
lege in Case of Reclassification, Change, Merger, Consolida-
tion or Sale of Assets.
<PAGE>
(a) In case of any consolidation with, or
merger of the Company into, any other corporation, or in
case of any merger of another corporation into the Company
(other than a merger which does not result in any reclassi-
fication, conversion, exchange or cancellation of outstand-
ing shares of Common Stock of the Company), or in case of
any sale or transfer of all or substantially all of the
assets of the Company, the corporation formed by such con-
solidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver
to the Trustee a supplemental indenture to the Indenture
providing that the Holder of each Registered Security and
Bearer Security shall have the right during the period such
Security shall be convertible as specified in the Registered
Security and Bearer Securities to convert such Security only
into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock
of the Company into which such Security might have been
converted immediately prior to such consolidation, merger,
sale or transfer assuming such holder of Common Stock failed
to exercise any rights of election as to the kind or amount
of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer, and assuming, if
such consolidation, merger, sale or transfer is prior to the
period such Security shall be convertible, that the Secu-
rities were convertible at such time at the initial Conver-
sion Price as adjusted pursuant to the terms of the Regis-
tered Security and Bearer Securities. Such amendment shall
provide for adjustments which, for events subsequent to the
effective date of such amendment, shall be as nearly equiva-
lent as may be practicable to the adjustments provided for
in the Registered Securities and the Bearer Securities. The
above provisions of this Section 13.6(a) shall similarly
apply to successive consolidations, mergers, sales or trans-
fers.
(b) Any Common Stock issued upon conversion
of a Restricted Security ("Restricted Common Stock") at any
time prior to the date which is three years after the Clos-
ing Date when a registration statement in respect of such
Common Stock is not effective under the Securities Act shall
be subject to the restrictions on transfer set forth in
Section 2.6 hereof to the same extent as the Restricted
Securities which were so converted. All shares of Restrict-
ed Common Stock shall bear the legend and transfer require-
ments set forth on the form of Registered Security set forth
as Exhibit A hereto.
<PAGE>
SECTION 13.7. Taxes on Conversion.
The Company will pay any and all documentary,
stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant
thereto; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of
any transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the Holder of the
Securities to be converted and no such issue or delivery
shall be made unless and until the person requesting such
issue or delivery has paid to the Company the amount of any
such tax or has established, to the satisfaction of the
Company, that such tax has been paid. The Company extends
no protection with respect to any other taxes imposed in
connection with conversion of Securities.
SECTION 13.8. Company to Provide Stock.
The Company shall reserve, free from pre-emptive
rights, out of its authorized but unissued shares, suffi-
cient shares to provide for the conversion of the Securities
from time to time as such Securities are presented for
conversion, provided, that nothing contained herein shall be
construed to preclude the Company from satisfying its obli-
gations in respect of the conversion of Securities by deliv-
ery of repurchased shares of Common Stock which are held in
the treasury of the Company.
If any shares of Common Stock to be reserved for
the purpose of conversion of Securities hereunder require
registration with or approval of any governmental authority
under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Compa-
ny covenants that it will in good faith and as expeditiously
as possible use its best efforts to secure such registration
or approval, as the case may be, provided, however, that
nothing in this Section 13.8 shall be deemed to limit in any
way the obligations of the Company provided in this Article
XIII.
Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par
value, if any, of the Common Stock, the Company will take
all corporate action which may, in the Opinion of Counsel,
be necessary in order that the Company may validly and
legally issue fully paid and non-assessable shares of Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common
Stock which may be issued upon conversion of Securities will
upon issue be fully paid and non-assessable by the Company
and free of preemptive rights.
<PAGE>
SECTION 13.9. Disclaimer of Responsibility for
Certain Matters.
Neither the Trustee, any agent of the Trustee, the
Conversion Agent nor any agency appointed by the Company
shall at any time be under any duty or responsibility to any
Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Price, or
with respect to the certificate referred to in Section 13.4
hereof, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method em-
ployed, or herein or in any supplemental indenture provided
to be employed, in making the same. Neither the Trustee,
any agent of the Trustee, the Conversion Agent nor any
agency appointed by the Company shall be accountable with
respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property
(including cash), which may at any time be issued or deliv-
ered upon the conversion of any Security; and neither the
Trustee nor the Conversion Agent or any agency appointed by
the Company makes any representation with respect thereto.
Neither the Trustee, any agent of the Trustee, the Conver-
sion Agent nor any agency appointed by the Company shall be
responsible for any failure of the Company to issue, regis-
ter the transfer of or deliver any shares of Common Stock or
stock certificates or other securities or property (includ-
ing cash) upon the surrender of any Security for the purpose
of conversion or, subject to Article VIII hereof, to comply
with any of the covenants of the Company contained in this
Article XIII.
SECTION 13.10. Return of Funds Deposited for
Redemption of Converted Securities.
Any funds which at any time shall have been depos-
ited by the Company or on its behalf with the Trustee or any
other Paying Agent for the purpose of paying the principal
of and interest on, or Additional Amounts with respect to,
any of the Securities and which shall not be required for
such purposes because of the conversion of such Securities,
as provided in this Article XIII, shall after such conver-
sion be repaid to the Company by the Trustee or such other
Paying Agent.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. TIA Controls.
If any provision of this Indenture limits, quali-
fies, or conflicts with the duties imposed by operation of
the TIA, the imposed duties, upon qualification of this
Indenture under the TIA, shall control.
<PAGE>
SECTION 14.2. Notices.
All notices hereunder shall be deemed to have been
given when deposited in the mail as first class mail, regis-
tered or certified, return receipt requested, postage pre-
paid, addressed to any party hereto as follows:
Address
The Company.......... Checkpoint Systems, Inc.
101 Wolf Drive
P.O. Box 188
Thorofare, New Jersey
08086
Attn: General Counsel
The Trustee.......... Chemical Bank
450 West 33rd Street
New York, New York 10001
Attn: Corporate Trustee
Administration
Department
Chemical Bank
125 London Wall
London EC2Y 5AJ
England
Attn: Corporate Agency
Department
The Paying Agent..... Chemical Bank
125 London Wall
London EC2Y 5AJ
England
Attn: Global Custody
or at any other address of which any of the foregoing shall
have notified the others in writing.
Notices to Holders of the Securities will be given
by publication in an Authorized Newspaper in New York City
and in London and, for so long as the Securities are listed
on the Luxembourg Stock Exchange, in Luxembourg, or, if
publication in either London or Luxembourg is not practical,
in an Authorized Newspaper in Europe. In addition, notices
to Holders of Registered Securities will be given by first-
class mail to the addresses of such Holders as they appear
in the register maintained by the Trustee on the fifteenth
day prior to such mailing. Such notices will be deemed to
have been given on the date of such publication or mailing
or, if published in such newspapers on different dates, on
the date of the first such publication. The Trustee shall
promptly furnish to the Company, the Paying Agent and to
each other paying agency of the Company a copy of each
notice so published or mailed.
<PAGE>
SECTION 14.3. Communications by Holders with
Other Holders.
Securityholders may communicate pursuant to TIA Sec
312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and any other Person shall have
the protection of TIA SEC12(c).
SECTION 14.4. 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:
(1) an Officers' Certificate (in form rea-
sonably satisfactory to the Trustee) stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel (in form reason-
ably satisfactory to the Trustee) stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
SECTION 14.5. Statements Required in Certificate
or Opinion.
Each certificate or opinion with respect to com-
pliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) 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
(4) a statement as to whether or not, in the
opinion of each such Person, such condition or covenant has
been complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 14.6. Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules for action
by or at a meeting of Securityholders. The Paying Agent or
Registrar may make reasonable rules for its functions.
<PAGE>
SECTION 14.7. Legal Holidays.
In any case where the date of maturity of the
principal of or interest on (or Additional Amounts, if any,
with respect to) the Securities or the date fixed for re-
demption of any Security or the last day on which a Security
may be converted shall be at any place of payment (or such
other act) a day other than a Business Day, then payment of
principal or interest (or Additional Amounts, if any), or
presentation for conversion, need not be made on such date
at such place but may be made on the next succeeding Busi-
ness Day at such place of payment (or such other act), with
the same force and effect as if made on the date of maturity
or the date fixed for redemption or such last day on which a
Security may be converted, and no interest shall accrue for
the period after such date.
SECTION 14.8. Taxes.
The Company will pay all stamp taxes and other
similar duties, if any, that may be imposed by the United
States of America or the United Kingdom, or any state or
political subdivision thereof or taxing authority therein,
with respect to the execution or delivery of this Indenture,
or the issuance of the Regulation S Global Security, or the
exchange from time to time of the Regulation S Global Secu-
rity for Registered Securities or Bearer Securities, or with
respect to the issue or delivery of shares of Common Stock
on conversion of Securities; provided, however, that the
Company shall not be required to pay any tax or duty which
may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock in a name other
than that of the holder of the Security or Securities to be
converted, and no such issue or delivery shall be made
unless and until the person requesting such issue has paid
to the Company the amount of any such tax or duty or has
established to the satisfaction of the Company that such tax
or duty has been paid; and further provided, that the Compa-
ny shall not be required to pay any tax or duty that may be
payable in respect of any accrued interest paid in connec-
tion with the conversion of the Securities.
<PAGE>
SECTION 14.9. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOV-
ERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PER-
FORMED WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCON-
DITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVE-
NIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDIC-
TION.
SECTION 14.10. Agent for Service of Process.
As long as any of the Securities or Coupons remain
outstanding, the Company will at all times have an autho-
rized agent in the City of New York, upon whom process may
be served in any legal action or proceeding arising out of
or relating to this Indenture or any Security or any Coupons
appertaining thereto. Service of process upon such agent
and written notice of such service mailed or delivered to
the Company shall to the extent permitted by law be deemed
in every respect effective service of process upon the
Company in any such legal action or proceeding. The Company
hereby appoints the Trustee as its agent for such purpose,
and covenants and agrees that service of process in any
legal action or proceeding may be made upon it at the office
of the Trustee at 450 West 33rd Street, New York, New York
10001, U.S.A., Attention: Corporate Trust Department (or
such other address in the City of New York, as may be the
Principal Corporate Trust Office of the Trustee in New
York), unless and until the Company shall designate another
agent for such purpose by written notice to the Trustee. If
the Trustee receives any such service of process, it shall
promptly notify the Company of such service.
SECTION 14.11. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret anoth-
er indenture, loan or debt agreement of the Company or any
of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
<PAGE>
SECTION 14.12. No Recourse Against Others.
No direct or indirect partner, employee, stock-
holder, director or officer, as such, past, present or
future of the Company or any successor corporation, shall
have any personal liability in respect of the obligations of
the Company under the Securities or this Indenture by reason
of his, her or its status as such partner, stockholder, em-
ployee, director or officer. Each Securityholder by accept-
ing a Security waives and releases all such liability. Such
waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 14.13. 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 14.14. Duplicate Originals.
All parties may sign any number of copies or
counterparts of this Indenture. Each signed copy or coun-
terpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 14.15. Severability.
In case any one or more of the provisions in this
Indenture or in the Securities shall be held invalid, ille-
gal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall
not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforce-
able to the full extent permitted by law.
SECTION 14.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and
headings of the Articles and the 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 14.17. Qualification of Indenture.
The Company shall qualify this Indenture under the
TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all costs and
expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but
not limited to, costs and expenses of qualification of the
Indenture and the Securities and printing this Indenture and
the Securities. The Trustee shall be entitled to receive
from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this
Indenture under the TIA.
<PAGE>
SECTION 14.18. Registration Rights.
Certain Holders of the Securities are entitled to
certain registration rights with respect to such Securities
pursuant to, and subject to the terms of, the Registration
Rights Agreement.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first
written above.
CHECKPOINT SYSTEMS, INC., a
Pennsylvania corporation
[Seal]
By: /s/Jeffrey A. Reinhold
Name: Jeffrey A. Reinhold
Title: Vice President
Attest: Mitchell Codkind
Assistant Secretary
CHEMICAL BANK, a New York corporation, as Trustee
[Seal]
By: /s/R. Lorenzen
Name: R. Lorenzen
Title: Senior Trust Officer
Attest: David G. Safer
Trust Officer
<PAGE>
EXHIBIT A
(FORM OF FACE OF REGISTERED SECURITY)
Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered
in the name of Cede & Co. or such other name as may be requested by an
authorized representative of DTC (and any payment is made to Cede & Co.
or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS THREE
YEARS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATED PERSON OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFEC-
TIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE RE-
QUIREMENTS OF RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) IN A TRANSACTION ARRANGED BY A BROKER OR DEALER
REGISTERED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN THE MEANING OF SUBPARA-
GRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT)
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
<PAGE>
TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RE-
STRICTIONS SET FORTH IN (II) ABOVE. IF ANY RESALE OR OTHER TRANSFER OF
THIS SECURITY IS PROPOSED TO BE MADE PURSUANT TO CLAUSE II(E) ABOVE
PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL
ISSUANCE HEREOF, THE TRANSFEROR SHALL DELIVER A LETTER FROM THE
TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING
TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY. ANY OFFER, SALE OR
OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D), (E) AND
(F) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO IT IN FORM AND SUBSTANCE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
<PAGE>
CHECKPOINT SYSTEMS, IN C.
(Incorporated in the State of Pennsylvania)
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2005
CUSIP No. [for Rule 144A Securities]
CUSIP No. [for Registered Regulation S Securities]
No. R[l][2][3]- U.S.$
Checkpoint Systems, Inc., a corporation duly
incorporated and existing under the laws of the State of Pennsylvania
(the "Company"), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
United States Dollars on November 1, 2005 upon presentation and
surrender hereof and to pay interest thereon, from October 24, 1995
or from the most recent Interest Payment Date (as defined below) to
which interest has been paid or duly provided for, semiannually in
arrears on May 1 and November 1 in each year (each an "Interest
Payment Date"), commencing May 1, 1996, at the rate of 5 1/4% per
annum until the principal hereof is paid or made available for
payment. Interest hereon shall be calculated on the basis of a 360-
day year comprised of twelve 30-day months. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture (as defined on the reverse
hereof), be paid to the person in whose name this Security is
registered at the close of business on the Interest Record Date for
such interest payment, which shall be October 15 or April 15 (whether
or not a Business Day) next preceding such Interest Payment Date. To
the extent lawful, the Company shall pay interest on overdue
principal and overdue installments of interest at the rate borne by
this Security, compounded semi-annually. Except as otherwise
provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder
on such Interest Record Date and, together with Defaulted Interest
relating thereto, may be paid at any time in any lawful manner, all
as more fully provided in the Indenture. Payment of interest on this
Security shall be made by United States dollar check (or in such coin
or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts)
drawn on a bank in the City of New York and mailed to the person
entitled thereto at his address as it shall appear in the Security
Register, or (if arrangements satisfactory to the Company and the
Trustee (as defined on the reverse hereof) are made) by wire transfer
to a United States dollar account maintained by the payee with a bank
in the City of New York; provided, however, that if such mailing is
not possible and no such application shall have been made, payment of
interest shall be made at the principal corporate trust office of the
Trustee, or such other office or agency of the Company as may be
designated for such purpose in the City of New York, in United States
currency.
<PAGE>
Reference is hereby made to the further provisions of
this Security set forth under Terms and Conditions of the Securities
on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security shall not become valid or enforceable for
any purpose unless and until the certificate of authentication hereon
shall have been manually signed by a duly authorized officer of the
Trustee.
IN WITNESS WHEREOF, the Company has caused this Security
to be duly executed in its corporate name and under its corporate
seal by the manual or facsimile signature of a duly authorized
signatory.
Dated:
CHECKPOINT SYSTEMS, INC.
[Corporate Seal]
By:
Name:
Title:
Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-
mentioned Indenture.
CHEMICAL BANK
as Trustee
By:
Authorized Officer
Dated:
<PAGE>
(FORM OF FACE OF BEARER SECURITY)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF
THE UNITED STATES INTERNAL REVENUE CODE.
CHECKPOINT SYSTEMS, INC.
(Incorporated in the State of Pennsylvania)
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2005
No. B- U.S.$
Checkpoint Systems, Inc., a corporation duly
incorporated and existing under the laws of the State of Pennsylvania
(the "Company"), for value received, hereby promises to pay to bearer
upon presentation and surrender of this Security the principal sum of
Thousand United States Dollars on November 1, 2005
upon presentation and surrender hereof and to pay interest thereon,
from October 24, 1995, semiannually in arrears on May 1 and November
1 in each year (each an Interest Payment Date"), commencing May 1,
1996, at the rate of 5 1/4% per annum until the principal hereof is
paid or made available for payment. Interest hereon shall be
calculated on the basis of a 360-day year comprised of twelve 30-day
months. To the extent lawful, the Company shall pay interest on
overdue principal and overdue installments of interest of the rate
borne by this Security, compounded semi-annually. Payments in
respect of this Security shall be made in such coin or currency of
the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, subject to any
laws or regulations applicable thereto and to the right of the
Company (limited as provided in the Indenture (as defined on the
reverse hereof)) to terminate the appointment of any paying agency,
at the London office of Chemical Bank located at 125 London Wall,
London EC2Y 5AJ, England, or Banque Internationale a Luxembourg S.A.,
69, route d'Esch, L-1470 Luxembourg, or at such other offices or
agencies outside the United States of America, its territories or its
possessions as the Company may designate, by United States dollar
check drawn on a bank in the City of New York, or (if arrangements
satisfactory to the Company and the Trustee (as defined on the
reverse hereof) are made) by wire transfer to a United States dollar
account maintained by the Holder at a bank outside the United States,
its territories and its possessions. Interest on this Security shall
be paid only at an office or agency located outside the United
States, its territories or its possessions and, in the case of
interest due on or before maturity, only upon presentation and
surrender at such an office or agency of the interest coupons hereto
attached as they severally mature. No payment on this Security or
any coupon will be made at the principal corporate trust office of
the Trustee or any other paying agency maintained by the Company in
the United States, nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States, except as
may be permitted by United States tax laws and regulations in effect
at the time of such payment without detriment to the Company.
Notwithstanding the foregoing, payment of this Security and coupons
may be made at the office of the Trustee in the City of New York if
full payment at all paying agencies outside the United States is
illegal or effectively precluded by exchange controls or other
similar restrictions.
<PAGE>
Reference is hereby made to the further provisions of
this Security set forth under Terms and Conditions of the Securities
on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Neither this Security nor any of the coupons attached
hereto shall become valid or enforceable for any purpose unless and
until the certificate of authentication hereon shall have been
manually signed by a duly authorized officer of the Trustee.
IN WITNESS WHEREOF, the Company has caused this Security
to be duly executed in its corporate name and under its corporate
seal by the manual or facsimile signature of a duly authorized
officer and coupons bearing the facsimile signature of a duly
authorized signatory to be annexed hereto.
Dated: _________ __, 1995
CHECKPOINT SYSTEMS, INC.
[Corporate Seal]
By:
Name:
Title:
Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-
mentioned Indenture.
CHEMICAL BANK
as Trustee
By:
Authorized Officer
Dated:
<PAGE>
(FORM OF FACE OF COUPON ON BEARER SECURITIES)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE
UNITED STATES INTERNAL REVENUE CODE.
CHECKPOINT SYSTEMS, INC.
(Incorporated in the State of Pennsylvania)
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2005
No.
U.S.$
Due
Unless the Bearer Security to which this coupon appertains
shall have been called for redemption prior to the due date hereof and
payment thereof duly provided for or shall have been converted,
Checkpoint Systems, Inc. (herein called the "Company") shall, subject to
and in accordance with the terms and conditions of the Bearer Security
and the Indenture dated as of October 24, 1995 between the Company and
Chemical Bank, as Trustee, pay to the bearer, on the date set forth
herein upon surrender hereof, the amount shown hereon (together with any
Additional Amounts in respect thereof which the Company may be required
to pay according to the terms of said Bearer Security) at the paying
agencies set out on the reverse hereof or at such other places outside
the United States of America, its territories and its possessions as the
Company may determine from time to time, by United States dollar check
(or in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and
private debts) drawn on a bank in the City of New York, or (if
arrangements satisfactory to the Company and the Trustee are made) wire
transfer to a United States dollar account maintained by the bearer at a
bank outside the United States of America, its territories and its
possessions, being one-half year's interest then payable on said Bearer
Security.
CHECKPOINT SYSTEMS, INC.
By:
Name:
Title:
Attest:
[Reverse of Coupon]
Chemical Bank Banque Internationale a
Corporate Agency Department Luxembourg S.A.
125 London Wall 69, route d'Esch
London EC2Y 5AJ L-1470 Luxembourg
England
<PAGE>
(FORM OF REVERSE OF REGISTERED AND BEARER SECURITIES)
Terms and Conditions of the Securities
1. General.
(a) This Security is one of a duly authorized issue of
securities of the Company designated as its 5 1/4% Convertible
Subordinated Debentures due 2005 (herein called the Securities"),
limited in aggregate principal amount to U.S.$120,000,000. The Company
issued the Securities under an Indenture, dated as of October 24, 1995
(the "Indenture"), between the Company and Chemical Bank, as trustee
(the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act, as in effect on the
date of the Indenture. The Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and said Act for
a statement of them. The Securities are general unsecured obligations
of the Company.
(b) The Securities are issuable as bearer securities (the
"Bearer Securities"), with interest Coupons attached, in the
denominations of U.S.$1,000 and U.S.$10,000, and as registered
securities (the "Registered Securities"), without coupons, in
denominations of U.S.$1,000 and integral multiples thereof. The
Registered Securities, and transfers thereof, shall be registered as
provided in the Indenture. The holder of any Bearer Security or any
Coupon and the registered holder of a Registered Security shall (to the
fullest extent permitted by applicable law) be treated at all times, by
all persons and for all purposes, except as provided in the Indenture,
as the absolute owner of such Security or Coupon, as the case may be,
regardless of any notice of ownership, theft or loss or of any writing
thereon.
2. Additional Amounts. The Company will pay, as additional
interest ("Additional Amounts"), to the Holder of this Security or of
any Coupon appertaining hereto who is a United States Alien (as defined
below) such amounts as may be necessary in order that every net payment
of the principal of and premium, if any, and interest on this Security,
after withholding for or on account of any present or future tax,
assessment or other governmental charge imposed upon or as a result of
such payment by the United States or any political subdivision or taxing
authority thereof or therein, will not be less than the interest
provided herein or any Coupon appertaining hereto to be then due and
payable; provided, however, that the foregoing obligation to pay
Additional Amounts shall not apply to:
<PAGE>
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any
present or former connection between such Holder (or between a
fiduciary, settlor, beneficiary, member or stockholder of, or a
person holding a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the United States,
including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, stockholder or person holding a
power) being or having been a citizen or resident or treated as a
resident thereof or being or having been engaged in a trade or
business therein or being or having been present therein or having
or having had a permanent establishment therein, (ii) such
Holder's present or former status as a personal holding company,
foreign personal holding company, passive foreign investment
company, foreign private foundation or other foreign tax-exempt
entity or controlled foreign corporation for United States tax
purposes or a corporation which accumulates earnings to avoid
United States Federal income tax, or (iii) such Holder's status as
a bank extending credit pursuant to a loan agreement entered into
in the ordinary course of business;
(b) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the
Holder of this Security or any Coupon appertaining hereto for
payment on a date more than 10 days after the date on which such
payment became due and payable or on the date on which payment
thereof is duly provided, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer or
personal or intangible property tax or any similar tax, assessment
or other governmental charge;
(d) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
present or former connection with the United States of the Holder
or beneficial owner of such Security or any related Coupon if such
compliance is required by statute, regulation or ruling of the
United States or any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from
such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which
is payable otherwise than by deduction or withholding from
payments of principal of and premium, if any, or interest on this
Security;
(f) any tax, assessment or other governmental charge
imposed on interest received by a person holding, actually or
constructively, 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote; or
<PAGE>
(g) any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment of
principal of and premium, if any, or interest on any Security or
interest on any Coupon appertaining thereto if such payment can be
made without such withholding by any other paying agent;
nor shall Additional Amounts be paid with respect to any payment of the
principal of or premium, if any, or interest on this Security (or cash
in lieu of issuance of shares of Common Stock upon conversion) to a
person other than the sole beneficial owner of such payment or that is a
partnership or fiduciary to the extent such beneficial owner, member of
such partnership or beneficiary or settlor with respect to such
fiduciary would not have been entitled to the payment of Additional
Amounts had such beneficial owner, member, beneficiary or settlor been
the holder of this Security or any Coupon appertaining hereto.
The term "United States Alien" means any person who, for
United States Federal income tax purposes, is (i) a foreign corporation,
(ii) a foreign partnership one or more of the members of which are, for
United States federal income tax purposes, foreign corporations, non-
resident alien individuals or a non-resident alien fiduciaries of a
foreign estate or trust, (iii) a non-resident alien individual or (iv) a
non-resident alien fiduciary of a foreign estate or trust, and the term
"United States" means the United States of America (including the
several States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
Except as specifically provided herein and in the Indenture,
the Company shall not be required to make any payment with respect to
any tax, assessment or other governmental charge imposed by any
government or any political subdivision or taxing authority thereof or
therein.
Whenever any Additional Amounts are to be paid on the
Securities, the Company will give notice to the Trustee, the Paying
Agent and any paying agency of the Company, all as provided in the
Indenture.
3. Redemption.
(a) The Company, at its option, may redeem the Securities,
in whole or in part (but if in part, in aggregate principal amounts of
no less than $1,000), at any time or times on and after November 10,
1998, upon notice as hereinafter prescribed, at a redemption price equal
to 103% of their principal amount if redeemed during the period
commencing November 10, 1998 up to and including October 31, 1999, 102%
of their principal amount if redeemed during the 12-month period
commencing November 1, 1999, 101% of their principal amount if redeemed
during the 12-month period commencing November 1, 2000, and 100% of
their principal amount if redeemed on or after November 1, 2001, in each
case together with accrued and unpaid interest to the date fixed for
redemption. If fewer than all of the then outstanding Securities are to
be redeemed, the Securities to be redeemed will be selected by the
Trustee not more than 75 days prior to the date fixed for redemption, by
such method as the Trustee shall deem fair and appropriate. Provisions
of this Security that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee
shall notify the Company promptly of the Securities or portions of
Securities to be called for redemption.
<PAGE>
(b) If, at any time, the Company shall determine that as a
result of any change in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation,
or any amendment to or change in an official application or
interpretation of such laws, regulations or rulings which change or
amendment becomes effective on or after October 17, 1995 the Company has
or will become obligated to pay to the holder of any Security or Coupon
Additional Amounts and such obligation cannot be avoided by the Company
taking reasonable measures available to it, then the Company may, at its
election exercised at any time when such conditions continue to exist,
redeem such Securities as a whole but not in part, upon notice as
hereinafter prescribed, at a redemption price equal to 100% of the
principal amount, together with accrued interest, if any, to the date
fixed for redemption; provided that no such notice of redemption shall
be given earlier than 90 days prior to the earliest date on which the
Company would be obliged to pay such Additional Amounts were a payment
in respect of such Securities then due; and provided further, that at
the time such notice is given, such obligation to pay such Additional
Amounts remains in effect.
Prior to any redemption of the Securities pursuant to the
preceding paragraph, the Company shall provide the Trustee with one or
more certificates (signed by the President or any Vice President and the
Treasurer or the Secretary) of the Company on which the Trustee may
conclusively rely to the effect that the Company is entitled to redeem
such Securities pursuant to such paragraph and that the conditions
precedent to the right of the Company to redeem such Securities pursuant
to such paragraph have occurred and a written Opinion of Counsel (who
may be an employee of the Company) stating that all legal conditions
precedent to the right of the Company to redeem such Securities pursuant
to such paragraph have occurred.
(c) The Company shall, except as set forth in the next
succeeding paragraph, redeem the Bearer Securities as a whole but not in
part, upon notice as hereinafter prescribed, at 100% of their principal
amount, together with interest accrued and unpaid to the date fixed for
redemption, less applicable withholding taxes, if any, plus any
applicable Additional Amounts payable, after the Company determines,
based on a written Opinion of Counsel, that any certification,
identification or information reporting requirement of any present or
future United States law or regulation with regard to the nationality,
residence or identity of a beneficial owner of a Bearer Security or a
Coupon appertaining thereto who is a United States Alien would be
applicable to a payment of principal of or interest on a Bearer Security
or a Coupon appertaining thereto made outside the United States by the
Company or a paying agent (other than a requirement (a) which would not
be applicable to a payment made by the Company or any one of its paying
agents (i) directly to the beneficial owner or (ii) to a custodian,
nominee or other agent of the beneficial owner, or (b) which could be
satisfied by the Holder, custodian, nominee or other agent certifying
that the beneficial owner is a United States Alien, provided, however,
in each case referred to in clauses (a)(ii) and (b) payment by such
<PAGE>
custodian, nominee or agent of the beneficial owner is not otherwise
subject to any requirement referred to in this sentence). The Company
shall make such determination and will notify the Trustee thereof in
writing as soon as practicable, stating in the notice the effective date
of such certification, identification, or information reporting
requirement and the dates within which the redemption shall occur, and
the Trustee shall give prompt notice thereof in accordance with the
Indenture. The Company shall determine the Redemption Date by notice to
the Trustee at least 75 days before the Redemption Date, unless shorter
notice is acceptable to the Trustee. Such redemption of the Securities
must take place on such date, not later than one year after the
publication of the initial notice of the Company's determination of the
existence of such certification, identification or information reporting
requirement. The Company shall not so redeem the Bearer Securities,
however, if the Company shall, based on a subsequent event, determine,
based on a written Opinion of Counsel, not less than 30 days prior to
the date fixed for redemption, that no such payment would be subject to
any requirement described above, in which case the Company shall notify
the Trustee, which shall give prompt notice of that determination in
accordance with the Indenture and any earlier redemption notice shall
thereupon be revoked and of no further effect.
Notwithstanding the preceding paragraph, if and so long as
the certification, identification or information reporting requirement
referred to in the preceding paragraph would be fully satisfied by
payment of United States withholding, backup withholding or similar
taxes, the Company may elect, prior to the giving of the notice of
redemption, to have the provisions of this paragraph apply in lieu of
the provisions of the preceding paragraph. In that event, the Company
will pay such Additional Amounts (without regard to Section 2 hereof) as
are necessary in order that, following the effective date of such
requirements, every net payment made outside the United States by the
Company or a paying agent of the principal of and interest on a Bearer
Security or a Coupon appertaining thereto to a Holder who is a United
States Alien (without regard to a certification, identification or
information reporting requirement as to the nationality, residence or
identity of such Holder), after deduction for United States withholding,
backup withholding or similar taxes (other than withholding, backup
withholding or similar taxes (i) which would not be applicable in the
circumstances referred to in the parenthetical clauses of the first
sentence of the next preceding paragraph or (ii) are imposed as a result
of presentation of such Bearer Security or Coupon for payment more than
10 days after the date on which such payment becomes due and payable or
on which payment thereof is duly provided for, whichever is later), will
not be less than the amount provided in the Bearer Security or the
Coupon to be then due and payable. If the Company elects to pay such
Additional Amounts and as long as it is obligated to pay such Additional
Amounts, the Company may subsequently redeem the Bearer Securities, at
any time, in whole but not in part, upon not more than 60 days nor less
than 30 days notice, given as hereinafter prescribed, at 100% of their
principal amount, plus accrued interest to the date fixed for redemption
and Additional Amounts, if any.
<PAGE>
(d) If there shall occur a Change of Control (as defined
in the Indenture) with respect to the Company, then the Holder of this
Security shall have the right, at such Holder's option, exercised in
accordance with this Section 3(d), to require the Company to purchase
this Security, in whole but not in part, on the Holder Redemption Date
at a Redemption Price equal to 100% of the principal amount, together
with accrued interest to the Holder Redemption Date.
Notwithstanding the fact that a Security is called for
redemption by the Company otherwise than pursuant to this Section 3(d),
each Holder of a Security desiring to exercise the option for redemption
set forth in this Section 3(d) shall, as a condition to such redemption,
on or before the close of business on the fifth Business Day prior to
the Holder Redemption Date, surrender the Security to be redeemed
(together with all unmatured Coupons, if applicable), in whole but not
in part, together with the Redemption Notice hereon duly executed at the
place or places specified in the notice required by Section 3(e) and
otherwise comply with the provisions of Section 3(f). A Holder of a
Security who has tendered a Redemption Notice (i) will be entitled to
revoke its election by delivering a written notice of such revocation
together with the Holder's non-transferable receipt for such Security to
the office or agency of the Company designated as the place for the
payment of the Securities to be so redeemed on or before the Holder
Redemption Date and (ii) will retain the right to convert its Securities
into shares of Common Stock of the Company on or before the close of
business on the fifth day (or if such day is not a Business Day, on the
next succeeding Business Day) next preceding the Holder Redemption Date.
In connection with any repurchase of Securities pursuant to
this Section 3(d), the Company will comply with any applicable rules and
regulations promulgated by the U.S. Securities and Exchange Commission
and nothing herein, including the time periods in which redemption is to
occur, shall require the Company to take action which violates such
applicable rules and regulations.
(e) Notice of any redemption or notice in connection with
a Change of Control will be given in accordance with Section 3.1 of the
Indenture.
(f) If (i) notice of redemption has been given in the
manner set forth in Section 3.1 of the Indenture with respect to
Securities to be redeemed at the option of the Company, or (ii) notice
of redemption has been given by the Holder of a Security to be redeemed
pursuant to Section 3(d) hereof, the Securities so to be redeemed shall
become due and payable on the applicable Redemption Date specified in
such notice and upon presentation and surrender of the Securities at the
place or places specified in the notice given by the Company with
respect to such redemption, together in the case of Bearer Securities
with all appurtenant Coupons, if any, maturing subsequent to the
Redemption Date, the Securities shall be paid and redeemed by the
Company, at the places and in the manner and currency herein specified
<PAGE>
and at the Redemption Price together with accrued interest, if any, to
the Redemption Date; provided, however, that interest due in respect of
Coupons maturing on or prior to the Redemption Date shall be payable
only upon the presentation and surrender of such Coupons (at an office
or agency located outside of the United States of America). If any
Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the amount otherwise payable
an amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if they are furnished with such security or indemnity as
they may require to save each of them and each other paying agency of
the Company harmless. From and after the Redemption Date, if monies
for the redemption of Securities shall have been available at the
principal corporate trust office of the Trustee for redemption on the
Redemption Date, the Securities shall cease to bear interest, the
Coupons for interest appertaining to Bearer Securities maturing
subsequent to the Redemption Date shall be void, and the only right of
the holders of such Securities shall be to receive payment of the
Redemption Price together with accrued interest to the Redemption Date.
If monies for the redemption of the Securities are not made available by
the Company for payment until after the Redemption Date, the Securities
shall not cease to bear interest until such monies have been so made
available.
4. Conversion.
(a) Subject to and upon compliance with the provisions of
the Indenture, a holder of Securities is entitled, at its option, at any
time on and after the Exchange Date and prior to the close of business
on November 1, 2005 to convert such Security (or any portion of the
principal amount thereof which is U.S.$1,000 or an integral multiple
thereof), at the principal amount thereof, or of such portion, into
fully paid and nonassessable shares ("Conversion Shares") of common
stock, par value $.10 per share ("Common Stock"), of the Company
(calculated as to each conversion to the nearest 1/1000 of a share) at a
Conversion Price equal to U.S.$36.75 aggregate principal amount of
Securities for each Conversion Share (the "Conversion Price") (or at the
current adjusted Conversion Price if an adjustment has been made as
provided herein) by surrender of the Security, together with (i) if a
Bearer Security, all unmatured Coupons and any matured Coupons in
default appertaining thereto, or (ii) if a Registered Security (if so
required by the Company or the Trustee), instruments of transfer in form
satisfactory to the Company and the Trustee, duly executed by the
registered holder or by his duly authorized attorney, and, in either
case, (iii) the Conversion Notice hereon duly executed (x) at the
principal corporate trust office of the Trustee, or at such other office
or agency of the Company as may be designated by it for such purpose in
the City of New York, or (y) subject to any laws or regulations
applicable thereto and subject to the right of the Company to terminate
the appointment of any such conversion agency, at the London office of
Chemical Bank located at 125 London Wall, London EC2Y 5AJ, England, and
Banque Internationale Luxembourg S.A., 69, route d'Esch, L1470
Luxembourg, or at such other offices or agencies as the Company may
designate; provided, however, that if any Security or a portion thereof
<PAGE>
is called for redemption by the Company, or the holder thereof elects to
have such Security redeemed in whole by the Company pursuant to Section
3(d) hereof, then in respect of such Security (or, in the case of
partial redemption by the Company, such portion thereof) the right to
convert such Security (or, in the case of partial redemption by the
Company, such portion thereof) shall expire (unless the Company defaults
in making the payment due upon redemption) at the close of business on
the fifth day (or if such date is not a Business Day, on the next
succeeding Business Day) next preceding the Redemption Date or the
Holder Redemption Date (unless in the latter case the holder shall have
first revoked his redemption election in accordance with Section 3(d)
hereof).
(b) In the case of any Registered Security which is
converted after any Interest Record Date and on or prior to the next
succeeding Interest Payment Date, interest that is payable on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest shall be paid to the
person in whose name that Registered Security is registered at the close
of business on such Interest Record Date. Except as otherwise provided
in the immediately preceding sentence, no payment or adjustment shall be
made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends or
distributions on the Conversion Shares issued upon conversion.
Registered Securities surrendered for conversion during the period after
the close of business on any Interest Record Date next preceding any
Interest Payment Date to the close of business on such Interest Payment
Date shall (except in the case of Registered Securities or portions
thereof which are called for redemption on a Redemption Date within such
period) be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount being
surrendered for conversion. No fractions of shares or scrip
representing fractions of shares will be issued or delivered on
conversion, but instead of any fractional interest the Company shall pay
a cash adjustment as provided in the Indenture.
(c) (i) In case at any time the Company shall pay or
make a stock dividend or other distribution on any class of equity
securities of the Company in shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced so that the same shall
equal the price determined by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares of Common Stock constituting such
dividend or other distribution, such adjustment to become effective
immediately after the opening of business on the day following the date
fixed for such determination; and in the event that such dividend or
other distribution is not so made, or is made in part, the Conversion
Price shall again be adjusted to be the Conversion Price which would
then be in effect (i) if such record date has not been fixed or (ii)
based on the actual number of shares actually issued, as the case may
be.
<PAGE>
(ii) In case at any time the Company shall (A) subdivide
its outstanding shares of Common Stock into a greater number of shares,
(B) combine its outstanding shares of Common Stock into a smaller number
of shares, or (C) issue by reclassification of its shares of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation) any shares of capital stock, the Conversion Price in effect
at the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the holder of
any Security surrendered for conversion after such time shall be
entitled to receive the aggregate number and kind of shares which, if
such Security had been converted immediately prior to such time, he
would have owned upon such conversion and been entitled to receive upon
such subdivision, combination or reclassification. Such adjustment
shall become effective immediately after the effective date of such
subdivision, combination or reclassification. Such adjustment shall be
made successively whenever any event listed above shall occur.
(iii) In case at any time the Company shall fix a record
date for the issuance of rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase Common Stock at a
price per share less than the Current Market Price per share of Common
Stock on such record date, the Conversion Price in effect at the opening
of business on the day following such record date shall be reduced so
that the same shall equal the price determined by multiplying such
Conversion Price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on
such record date plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares so offered
for subscription or purchase would purchase at such Current Market Price
per share of Common Stock and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on such
record date plus the number of shares so offered for subscription or
purchase, such reduction to become effective immediately after the
opening of business on the day following such record date; provided,
however, that no adjustment to the Conversion Price shall be made
pursuant to this Section 4(c)(iii) if the holders of Securities receive,
or are entitled to receive upon conversion or otherwise, the same rights
or warrants as are issued to the holders of Common Stock, on the same
terms and conditions as such rights or warrants are so issued to the
holders of Common Stock. Such reduction shall be made successively
whenever such a record date is fixed; and in the event that such rights
or warrants are not so issued, or are issued in part, or are issued but
all or part of which expire unexercised, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect (i) if such record date had not been fixed or (ii) based on the
actual number of rights or warrants actually issued, as the case may be.
(iv) In case at any time the Company shall fix a record
date for the making of a distribution, by dividend or otherwise, to all
holders of its shares of Common Stock, of evidences of its indebtedness
or assets (including securities, but excluding (x) any dividend or
distribution referred to in paragraph (i) of this subsection (c) and any
<PAGE>
rights or warrants referred to in paragraph (iii) of this subsection
(c), and (y) any dividend, return of capital or distribution paid in
cash out of the retained earnings of the Company), then in each such
case the Conversion Price in effect after such record date shall be
determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction, of which the numerator shall be
the total number of outstanding shares of Common Stock multiplied by the
Current Market Price per share of Common Stock on such record date, less
the fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive and described in a
statement filed with the Trustee) of the portion of the assets or
evidences of indebtedness so to be distributed, and of which the
denominator shall be the total number of outstanding shares of Common
Stock multiplied by such Current Market Price per share of Common Stock.
Such adjustment shall be made successively whenever such a record date
is fixed and shall become effective immediately after the record date
for the determination of stockholders entitled to receive the
distribution; and in the event that such distribution is not so made,
the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such record date has not been fixed.
(v) The Company may make such adjustments in the
Conversion Price, in addition to those required by paragraphs (i), (ii),
(iii) and (iv) of this section, as it considers to be advisable in order
that any event treated for United States Federal income tax purposes as
a dividend of stock or stock rights shall not be taxable to the
recipients.
(vi) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of
at least U.S. $.25 in such Conversion Price; provided, however, that any
adjustment which by reason of this paragraph (vi) is not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this subsection (c) shall be made to
the nearest cent or to the nearest 1/1000 of a share, as the case may
be.
(d) Whenever the Conversion Price is adjusted and in the
event of certain other corporate actions, as herein provided, the
Company shall give notice, all as provided in the Indenture.
(e) The Company shall use its reasonable best efforts to
cause all registrations with, and to obtain any approvals by, any
governmental authority under any Federal or state law of the United
States that may be required before the Conversion Shares (or other
securities issuable upon conversion of the Securities) may be lawfully
issued or transferred and delivered
<PAGE>
5. Transfer and Exchange of Securities.
(a) Title to Bearer Securities and coupons shall pass by
delivery. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Registered Securities is
registrable on the Security Register upon surrender of a Registered
Security for registration of transfer at the office or agency of the
Trustee in the City of New York, or, subject to applicable laws and
regulations, at the office of the paying agency in Luxembourg, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the holder thereof or his attorney duly authorized in writing, and
thereupon one or more new Registered Securities, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
(b) As provided in the Indenture and subject to certain
limitations therein set forth, Bearer Securities (with all unmatured
Coupons appertaining thereto) are exchangeable at, subject to applicable
laws and regulations, the offices of the paying agencies in London and
Luxembourg or as designated by the Company for such purpose pursuant to
the Indenture, for an equal aggregate principal amount of Registered
Securities and/or Bearer Securities of authorized denominations, and
Registered Securities are exchangeable at the principal corporate trust
office of the Trustee in the City of New York or, subject to applicable
laws and regulations, the offices of the paying agencies in London and
Luxembourg or as designated by the Company for such purpose pursuant to
the Indenture, for an equal aggregate principal amount of Registered
Securities of authorized denominations as requested by the Holder
surrendering the same. Registered Securities will not be exchangeable
for Bearer Securities. The Company shall not be required (a) to
exchange Bearer Securities for Registered Securities during the period
between the close of business on any Interest Record Date and the
opening of business on the next succeeding Interest Payment Date, (b) to
exchange any Bearer Security (or portion thereof) for a Registered
Security if the Company shall determine and inform the Trustee in
writing that, as a result thereof, the Company may incur adverse
consequences under the Federal income tax laws and regulations
(including proposed regulations) of the United States in effect or
proposed at the time of such exchange, or (c) in the event of a
redemption in part, (i) to register the transfer of Registered
Securities or to exchange Bearer Securities for Registered Securities
during a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption; (ii) to register the transfer of or exchange any such
Registered Securities, or portion thereof, called for redemption; or
(iii) to exchange any such Bearer Securities called for redemption;
provided, however, that a Bearer Security called for redemption may be
exchanged for a Registered Security which is simultaneously surrendered,
with written instruction for payment on the Redemption Date, unless the
Redemption Date is during the period between the close of business on
any Interest Record Date and the close of business on the next
succeeding Interest Payment Date, in which case such exchange may only
be made prior to the close of business on the Interest Record Date
immediately preceding the Redemption Date. The Company also shall not
be required to exchange Securities if, as a result thereof, the Company
would incur adverse consequences under United States Federal income tax
laws in effect at the time of such exchange. In the event of redemption
or conversion of a Registered Security in part only, a new Registered
Security or Securities for the unredeemed or unconverted portion hereof
will be issued in the name of the holder thereof.
<PAGE>
(c) The costs and expenses of effecting any exchange or
registration of transfer pursuant to the foregoing provisions, except
for the expenses of delivery (if any) by other than regular mail and
except, if the Company shall so require, the payment of a sum sufficient
to cover any tax or other governmental charge or insurance charges that
may be imposed in relation thereto, will be borne by the Company.
(d) The Company has initially appointed the Trustee as
registrar, transfer agent, paying agent and conversion agent acting
through the Trustee's principal corporate trust office in the City of
New York and its agents in London. The Company has also initially
appointed Banque Internationale Luxembourg S.A. as a transfer agent,
paying agent and conversion agent. The Company may at any time
terminate the appointment of the registrar and such agents and appoint
additional or other registrars and agents or approve any change in an
office through which the registrar or any agent acts; provided that,
until all of the Securities have been delivered to the Trustee for
cancellation, or monies sufficient to pay the Securities have been made
available for payment and either paid or returned to the Company as
provided in the Securities and the Indenture, the Company will maintain
a paying agent and a conversion agent (i) in the City of New York in the
United States for the payment of the principal and interest on
Registered Securities and for the surrender of Securities for conversion
or redemption and (ii) in a European city that, so long as the
Securities are listed on the Luxembourg Stock Exchange and such exchange
shall so require, shall be Luxembourg, for the payment of the principal
and interest on Securities and for the surrender of Securities for
conversion or redemption.
6. Meetings of Holders.
A meeting of holders of Securities may be called at any time
and from time to time in the manner and for the purposes set forth in
the Indenture.
The Trustee may at any time call a meeting of holders of the
Securities to be held at such time and at such place in any of such
designated locations as the Trustee shall determine. Notice of every
meeting of holders shall be made as specified in the Indenture.
7. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securi-
ties may be amended or supplemented, and any existing Default or Event
of Default or compliance with any provision may be waived, with the
written consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent
of any Holder, the parties thereto may amend or supplement the Indenture
or the Securities to, among other things, cure any ambiguity, defect or
inconsistency, or make any other change that does not adversely affect
the rights of any Holder of a Security.
<PAGE>
8. Subordination
Payment of principal, premium, if any, interest on and
Additional Amounts with respect to the Securities is subordinated, in
the manner and to the extent set forth in the Indenture, to the prior
payment in full of all Senior Indebtedness.
9. Successors.
Except as otherwise provided in the Indenture, when a
successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from
those obligations.
10. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than
an Event of Default relating to certain events of bankruptcy, insolvency
or reorganization in which events all principal, accrued interest and
Additional Amounts, if any, with respect to the Securities will be
immediately due and payable without any declaration or other act on the
part of the Trustee or the Holders), then in every such case, unless the
principal of all of the Securities shall have already become due and
payable, either the Trustee or the Holders of 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to
be due and payable immediately in the manner and with the effect pro-
vided in the Indenture. Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of
a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Securities notice of
any continuing Default or Event of Default (except a Default in payment
of principal, interest or Additional Amounts), if it determines that
withholding notice is in their interest.
11. No Recourse Against Others.
No stockholder, director, officer or employee, as such,
past, present or future, of the Company or any successor corporation
shall have any personal liability in respect of the obligations of the
Company under the Securities or the Indenture by reason of his, her or
its status as such stockholder, director, officer or employee. Each
Holder of a Security by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration
for the issuance of the Securities.
12. Non-Business Days. In any case where the date of maturity
of the principal of or interest on (or Additional Amounts, if any) the
Securities or the date fixed for redemption of any Security shall be at
any place of payment a day other than a Business Day, then payment of
principal or interest (or Additional Amounts, if any) need not be made
on such date at such place but may be made on the next succeeding
Business Day at such place of payment, with the same force and effect as
if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
<PAGE>
13. Notices. All notices to the Holders of Securities will be
published on a Business Day in Authorized Newspapers in the City of New
York and in London, and, as long as the Securities are listed on the
Luxembourg Stock Exchange, in an Authorized Newspaper in Luxembourg or,
if either publication in London or Luxembourg is not practical, in an
Authorized Newspaper in any country in Europe. Notices shall be deemed
to have been given on the date of publication as aforesaid or, if
published on different dates, on the date of the first such publication.
A copy of each notice will be mailed by the Trustee, on behalf of and at
the expense of the Company, by first-class mail to each holder of a
Registered Security at the registered address of such holder as the same
shall appear in the Security Register on the day fifteen days prior to
such mailing. The Trustee shall promptly furnish to the Company, the
Paying Agent and to each other paying agency of the Company a copy of
each notice so published or mailed.
14. Governing Law.
(a) The Indenture, this Security and any coupons
appertaining hereto shall be governed by and construed in accordance
with the laws of the State of New York, United States of America,
without regard to principles of conflicts of laws.
(b) The Company has appointed the Trustee as its agent
upon whom process may be served in any legal action or proceeding
relating to or arising out of this Security, the Indenture or any Coupon
appertaining hereto.
15. Authentication. This Security and any Coupon appertaining
thereto shall not become valid or obligatory for any purpose until the
certificate of authentication hereon shall have been duly signed by the
Trustee acting under the Indenture.
16. Warranty of the Issuer. Subject to Section 15 hereof, the
Company hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent
to the creation and issuance of this Security and any coupons
appertaining thereto, and to constitute the same legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, have been done and performed and have happened in due and strict
compliance with all applicable laws.
17. Status as United States Real Property Holding Corporation.
To the best of its knowledge, as of the date of the issuance of this
Security, the Company is not a "United States real property holding
corporation" as defined in Section 897(c)(2) of the Internal Revenue
Code of 1986, as amended (the "Code"). A non-United States person
disposing of this Security may request from the Company a statement as
to whether this Security constitutes a "United States real property
interest" (as defined in Code Section 897(c)(1)) as of the date of
disposition. It may be necessary to obtain a statement that this
Security does not constitute a "United States real property interest"
prior to the time that a tax return would otherwise be required to be
<PAGE>
filed with the Internal Revenue Service with respect to such disposition
in order to avoid a withholding tax on such disposition. If, at any
time while this Security is outstanding, the Company determines that it
is at such time a "United States real property holding corporation", it
shall provide notice of such determination in accordance with the
provisions of Section 13 hereof. The Holder of this Security can
contact the Company at 101 Wolff Drive, P.O. Box 188, Thorofare, New
Jersey 08086 to obtain information as to the United States income tax
consequences of the classification of the Company as a "United States
real property holding corporation."
18. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
19. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP
numbers to be printed on the Securities as a convenience to the Holders
of the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
20. Additional Rights of Holders of Restricted Securities.
In addition to the rights provided to Holders of Securities
under the Indenture, Holders of Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement.
21. Accounting Terms. All accounting terms not otherwise
defined herein shall have the meanings assigned to them in accordance
with generally accepted accounting principles as applied in the United
States.
22. Descriptive Headings. The descriptive headings appearing
herein are for convenience of reference only and shall not alter, limit
or define the provisions hereof.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration
Rights Agreement. Request may be made to:
Checkpoint Systems, Inc.
101 Wolf Drive
P.O. Box 188
Thorofare, New Jersey 08086
Attention: Secretary
<PAGE>
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfers) unto
whose taxpayer identification number is and whose address
including postal/zip code is
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing
attorney-in-fact to transfer said Security on the books of the Company
with full power of substitution in the premises.
Only if a Restricted Security:
In connection with the transfer of this Security, the undersigned
certifies that:
(Check one)
(a) This Security is being transferred
to a qualified institutional buyer"
(as defined in Rule 144A under the
Securities Act of 1933) in
compliance with the exemption from
registration under the Securities
Act of 1933 provided by Rule 144A.
(b) This Security is being transferred
in an Offshore Transaction (as
defined in Regulation S under the
Securities Act of 1933) in
compliance with the exemption from
registration under the Securities
Act of 1933 provided by Regulation
S.
(c) This Security is being transferred
in a transaction arranged by a
broker or dealer registered under
the Securities Exchange Act of 1934
to an institutional "accredited
investor" (within the meaning of
Rule 501(a)(1), (2), (3) or (7)
under the Securities Act of 1933) in
a transaction not involving any
general solicitation or general
advertising and in connection with
which transfer the Company has
received, if it has so requested, an
opinion of counsel (satisfactory to
it in form and substance) to the
effect that the transfer is being
made pursuant to an exemption from
the registration requirements of the
Securities Act of 1933.
<PAGE>
(d) This Security is being transferred
to Checkpoint Systems, Inc.
(e) Transfer other than those above in
connection with which the Company
has received an opinion of counsel
(satisfactory to it in form and
substance) to the effect that the
transfer is being made pursuant to
an exemption from, or in a
transaction not subject to, the
registration requirements of the
Securities Act of 1933.
(f) This Security is being exchanged for
a beneficial interest in the Rule
144A Global Security and the
undersigned is a "qualified
institutional buyer" (as defined in
Rule 144A under the Securities Act
of 1933).
Dated: Name:
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without enlargement or any change
whatsoever.
SIGNATURE GUARANTEED
<PAGE>
TO BE COMPLETED BY A BROKER OR DEALER IF (c) ABOVE IS CHECKED:
The undersigned represents and warrants that (i) it is a broker or
dealer registered under Section 15 of the Securities Exchange Act of
1934, (ii) each person which will become a beneficial owner of this
Security upon transfer is an institutional investor which is an
accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933); (iii) no general solicitation or
general advertising was made or used by it in connection with the offer
and sale of this Security to such person(s); and (iv) each such person
has been notified that this Security has not been registered under the
Securities Act of 1933 and is subject to the restrictions on transfer of
the Security set forth herein and in the Indenture.
Dated:
By:
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE TRUSTEE SHALL NOT
BE OBLIGATED TO REGISTER THE TRANSFER OF THIS SECURITY UNLESS AND UNTIL
THE CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET FORTH HEREIN, ON
THE FACE HEREOF AND IN THE INDENTURE SHALL HAVE BEEN SATISFIED.
<PAGE>
CONVERSION NOTICE
If (i) Registered Security of denomination U.S. $1,000 or (ii) Bearer
Security of denomination U.S. $1,000:
The undersigned holder of this Security hereby irrevocably
exercises the option to convert this Security into shares of Common
Stock of Checkpoint Systems, Inc. in accordance with the terms of this
Security and directs that such shares be registered in the name of and
delivered, together with a check in payment for any fractional share, to
the undersigned unless a different name has been indicated below. If
shares are to be registered in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Dated:
Signature
MUST BE GUARANTEED IF STOCK IS
TO BE ISSUED IN A NAME OTHER
THAN THE REGISTERED HOLDER OF
THE SECURITY
If shares are to be registered in the name
of and delivered to a person other than the
holder, please print such person's name and
address and, if this is a Restricted Security,
complete Transfer Notice:
HOLDER
Please print name and address
of holder:
<PAGE>
CONVERSION NOTICE
If (i) Registered Security of denomination greater than U.S. $1,000 or
(ii) Bearer Security of denomination U.S. $10,000:
The undersigned holder of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which
is U.S. $1,000 or an integral multiple thereof) below designated, into
shares of Common Stock of Checkpoint Systems, Inc. in accordance with
the terms of this Security, and directs that such shares, together with
a check in payment for any fractional share and any Securities
representing any unconverted principal amount hereof, be delivered to
and be registered (if a Registered Security) in the name of the
undersigned unless a different name has been indicated below. If shares
or Securities are to be registered in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
Dated:
Signature
MUST BE GUARANTEED IF THE STOCK IS
TO BE ISSUED IN A NAME OTHER THAN
THE REGISTERED HOLDER OF THE
SECURITY
If shares or Securities are to registered If only a portion of the
in the name of a Person other than the Securities in the name of
holder, please print such person's name is to be converted, please
and address and, if theis is a Restricted indicate:
Security, complete Transfer Notice:
1.Principal Amount to be
Security, complete Transfer Notice: converted: U.S.$
2.Kind, amount and denomin-
ation of Securities
representing unconverted
principal amount to be
issued:
Bearer-U.S.$
Denominations: U.S.$
(U.S. $1,000 or $10,000)
Registered-U.S.$
Denominations: U.S.$
(U.S. $1,000 or an integral
multiple thereof)
Registered Securities are not
exchangeable for Bearer
Securities.
<PAGE>
REDEMPTION NOTICE UNDER SECTION 3(d)
The undersigned holder of this Security hereby requests and
instructs the Company to redeem this Security in accordance with the
terms of Section 3(d) of this Security and directs that a check in
payment of the redemption amount be delivered to the undersigned unless
a different name has been indicated below. The undersigned understands
that this request can be revoked by delivering written notice to the
Paying Agent on or before the Holder Redemption Date, together with the
undersigned's non-transferable receipt for such Security.
Dated:
Signature
MUST BE GUARANTEED IF CHECK IS TO BE
MADE PAYABLE TO A NAME OTHER THAN
THE REGISTERED HOLDER OF THE
SECURITY
If a check in payment of the
redemption amount is to be
delivered to a person other
than the holder, please print
such person's name and address:
HOLDER
Please print name and address
of holder:
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES
The following exchanges of a part of this Rule 144A Global
Security for Registered Accredited Investor Securities have been made:
Princiapl
Amount of
Amount of this Global Signature of
Decrease In Amount of Security authorized
Principal Increase following Officer of
Date Amount of in Principal such Trustee or
of this Global Amount of this decrease Security
Exchange Security Global Security or Increase Registrar
<PAGE>
EXHIBIT B
(FORM OF REGULATION S GLOBAL SECURITY)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OF AMERICA (INCLUDING THE
STATES AND THE DISTRICT OF COLUMBIA), ITS TERRITORIES, ITS POSSESSIONS
AND OTHER AREAS SUBJECT TO ITS JURISDICTION (THE "UNITED STATES") OR TO
ANY CITIZEN, NATIONAL OR RESIDENT OF THE UNITED STATES OR TO ANY
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR
UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION
THEREOF, OR TO ANY ESTATE OR TRUST THE INCOME OF WHICH IS SUBJECT TO
UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE OR TO ANY
OTHER PERSON DEEMED A U.S. PERSON UNDER REGULATION S UNDER THE
SECURITIES ACT, ("UNITED STATES PERSONS") EXCEPT TO CERTAIN
INSTITUTIONAL INVESTORS IN THE UNITED STATES IN TRANSACTIONS NOT
REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT
TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
THIS SECURITY IS A TEMPORARY GLOBAL SECURITY, WITHOUT COUPONS,
EXCHANGEABLE FOR DEFINITIVE BEARER SECURITIES WITH INTEREST COUPONS OR
REGISTERED SECURITIES WITHOUT INTEREST COUPONS. THE RIGHTS ATTACHING
TO THIS GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE INDENTURE
(AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT
PURSUANT TO THE PROVISIONS HEREOF.
<PAGE>
CHECKPOINT SYSTEMS, INC.
(Incorporated in the State of Pennsylvania)
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2005
TEMPORARY GLOBAL DEBENTURE
CHECKPOINT SYSTEMS, INC., a corporation duly incorporated and
existing under the laws of the State of Pennsylvania (the "Company"),
for value received, hereby promises to pay to bearer upon presentation
and surrender of this Global Security the principal sum of $
United States Dollars on November 1, 2005 and to pay interest thereon,
from October 24, 1995 semiannually in arrears on May 1 and November 1 in
each year, commencing May 1, 1996, at the rate of 5 1/4% per annum,
until the principal hereof is paid or made available for payment;
provided, however, that interest on this Global Security shall be
payable only after the issuance of the definitive Securities for which
this Global Security is exchangeable and, in the case of definitive
Securities in bearer form, only upon presentation and surrender (at an
office or agency outside the United States, its territories and its
possessions, except as otherwise provided in the Indenture referred to
below) of the interest coupons thereto attached as they severally
mature.
This Global Security is one of a duly authorized issue of
Securities of the Company designated as specified in the title hereof,
issued and to be issued under the Indenture dated as of October 24, 1995
(the "Indenture") between the Company and Chemical Bank, as Trustee (the
"Trustee," which term includes any successor fiscal agent under the
Indenture). This Global Security is a temporary Security and is
exchangeable in whole or from time to time in part without charge upon
request of the holder hereof for definitive Securities in bearer form,
with interest coupons attached, or in registered form, without coupons,
of authorized denominations, (a) not earlier than 40 days after the date
hereof and (b) as promptly as practicable following presentation of
certification, in the forms set forth as Exhibits C, D, E and F of the
Indenture for such purpose, that the beneficial owner or owners of this
Global Security (or, if such exchange is only for a part of this Global
Security, of such part) are not United States persons or other Persons
who have purchased such Security for resale to United States persons.
Definitive Securities in bearer form to be delivered in exchange for any
part of this Global Security shall be delivered only outside of the
United States, its territories and its possessions. Upon any exchange
of a part of this Global Security for definitive Securities, the portion
of the principal amount hereof so exchanged shall be endorsed by the
Trustee or its agent on the Schedule of Exchanges hereto, and the
principal amount hereof shall be reduced for all purposes by the amount
so exchanged.
Until exchanged in full for definitive Securities, this Global
Security shall in all respects be entitled to the same benefits under,
and subject to the same terms and conditions of, the Indenture as
definitive Securities authenticated and delivered thereunder, except
that neither the holder hereof nor the beneficial owners of this Global
Security shall be entitled to receive payment of interest hereon or to
convert this Global Security into shares of Common Stock of the Company
or any other security, cash or other property.
<PAGE>
THIS GLOBAL SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
All terms used in this Global Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been manually
executed by an authorized signatory of the Trustee, this Global Security
shall not be entitled to any benefit under the Indenture or valid or
obligatory for any purpose.
IN WITNESS, WHEREOF, the Company has caused this Global Security
to be duly executed in its corporate name by its duly authorized
signatory under its corporate seal.
Dated: October 24, 1995
CHECKPOINT SYSTEMS, INC.
[Corporate Seal]
By:
Name:
Title:
Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
CHEMICAL BANK,
as Trustee
By:
<PAGE>
51/4% CONVERTIBLE SUBORDINATED NOTES DUE 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of October 24, 1995
by and among
CHECKPOINT SYSTEMS, INC.
as the Company,
and
Persons Listed on Schedule I hereto
<PAGE>
This Registration Rights Agreement is made and entered
into as of October 24, 1995, by and among Checkpoint Systems, Inc.,
a Pennsylvania corporation (the "Company"), and the parties listed on
Schedule I hereto (the "Managers").
This Agreement is made pursuant to the Subscription
Agreement, dated October 17, 1995, among the Company and the Managers
(the "Subscription Agreement"). In order to induce the Managers to
enter into the Subscription Agreement, the Company has agreed to
provide the registration rights provided for in this Agreement to the
Managers and their respective direct and indirect transferees. The
execution of this Agreement is a condition to the closing of the
transactions contemplated by the Subscription Agreement.
The parties hereby agree as follows:
I. Definitions
As used in this Agreement, the following terms shall
have the following meanings:
Accredited Investor Debentures: Debentures initially
resold by the Managers pursuant to the Subscription Agreement to
institutional "accredited investors" (within the meaning of Rule
501(a)(1), (2), (3) or (7) promulgated by the SEC under the
Securities Act) and all Debentures issued upon registration of
transfer of or in exchange for such Debentures.
Advice: As defined in the last paragraph of Section 3
hereof.
Affiliate of any specified person shall mean any other
person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For
the purposes of this definition, "control," when used with respect to
any person, means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "affili-
ated," "controlling" and "controlled" have meanings correlative to
the foregoing.
Agreement: This Registration Rights Agreement, as the
same may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New
York, New York are authorized or obligated by law or executive order
to close.
Closing Date: The Closing Date as defined in the
Subscription Agreement.
Common Stock: Common Stock, $.10 par value per share of
the Company.
<PAGE>
Company: Checkpoint Systems, Inc., a Pennsylvania cor-
poration, and any successor corporation thereto.
Controlling Person: As defined in Section5(a) hereof.
Debentures: The $120,000,000 aggregate principal amount
of 51/4% Convertible Subordinated Debentures due 2005 of the
Company being issued pursuant to the Indenture.
Effectiveness Period: As defined in Section 2(a)
hereof.
Effectiveness Target Date: The 180th day following the
Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
pursuant thereto.
Filing Date: The 120th day after the Closing Date.
Holder: Each registered holder of any Transfer
Restricted Securities.
Indemnified Person: As defined in Section 5(a) hereof.
Indenture: The Indenture, dated the date hereof,
between the Company and the Trustee thereunder, pursuant to which the
Debentures are being issued, as amended, modified or supplemented
from time to time in accordance with the terms thereof.
Lead Managers: NatWest Securities Limited, Deutsche
Morgan Grenfell/C.S. Lawrence Inc., PaineWebber Incorporated and HD
Brous & Co., Inc.
Managers: As defined in the preamble hereof.
Paying Agent: As defined in the Indenture.
Proceeding: An action, claim, suit or proceeding (in-
cluding, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated pursuant to the Securities Act), as amended or supple-
mented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Securities covered
by such Registration Statement, and all other amendments and supple-
ments to any such prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
<PAGE>
Registration Statement: Any registration statement of
the Company that covers any of the Transfer Restricted Securities
pursuant to the provisions of this Agreement, including the Prospec-
tus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration
statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 144A Debentures: Debentures initially resold by
the Managers pursuant to the Subscription Agreement to "qualified
institutional buyers" (as such term is defined in Rule 144A) and all
Debentures issued upon registration of transfer of or in exchange for
such Debentures.
Rule 158: Rule 158 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to
the Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC as a
replacement thereto having substantially the same effect as such
Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
<PAGE>
Shelf Registration: As defined in Section 2 hereof.
Special Counsel: Any special counsel to the Holders of
the Transfer Restricted Securities, for which the Holders of the
Transfer Restricted Securities will be reimbursed pursuant to Section
4 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Rule 144A
Debentures, the Accredited Investor Debentures and the shares of Com-
mon Stock into which the Rule 144A Debentures and the Accredited
Investor Debentures are convertible, upon original issuance thereof,
and at all times subsequent thereto, until, in the case of any such
Rule 144A Debenture, Accredited Investor Debenture or share, (i) the
date on which it has been registered effectively pursuant to the
Securities Act and disposed of in accordance with the Registration
Statement relating to it, (ii) the date on which either such
Debentures or the shares of Common Stock issued upon conversion of
such Debentures are distributed to the public pursuant to Rule 144
(or any similar provisions then in effect) or are saleable pursuant
to Rule 144(k) promulgated by the SEC pursuant to the Securities Act
or (iii) the date on which it ceases to be outstanding.
Trustee: Chemical Bank, the trustee under the Inden-
ture.
underwritten registration or underwritten offering: A
registration in connection with which securities of the Company are
sold to an underwriter for reoffering to the public pursuant to an
effective Registration Statement.
2. Shelf Registration
(a) The Company agrees to file with the SEC as soon as
practicable after the Closing Date, but in no event later than the
Filing Date, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "Shelf Registration"). The Shelf Regis-
tration shall be on Form S-3 under the Securities Act or another
appropriate form permitting registration of such Transfer Restricted
Securities for resale by the Holders in the manner or manners rea-
sonably designated by them (including, without limitation, one or
more underwritten offerings). The Company shall not permit any secu-
rities other than the Transfer Restricted Securities to be included
in the Shelf Registration. The Company shall use its reasonable best
efforts, as described in Section 3, to cause the Shelf Registration
to be declared effective pursuant to the Securities Act as promptly
as practicable following the filing thereof, but in no event later
than the Effectiveness Target Date, and to keep the Shelf Regis-
tration continuously effective under the Securities Act thereafter
through the 36th month after the Closing Date (subject to extension
pursuant to clause (b) and the last paragraph of Section 3 hereof),
or such shorter period ending when there cease to be outstanding any
Transfer Restricted Securities (the "Effectiveness Period").
<PAGE>
(b) Supplements and Amendments. The Company shall use
its reasonable best efforts to keep the Shelf Registration continu-
ously effective by supplementing and amending the Shelf Registration
if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Transfer Restricted
Securities covered by such Registration Statement or by any under-
writer of such Transfer Restricted Securities; provided that the
Effectiveness Period shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 and as otherwise provided herein.
3. Registration Procedures
In connection with the Company's registration
obligations hereunder, the Company shall effect such registrations on
the appropriate form available for the sale of the Transfer
Restricted Securities to permit the sale of the Transfer Restricted
Securities in accordance with the method or methods of disposition
thereof specified by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities, and pursuant thereto
the Company shall as expeditiously as possible:
(a) No fewer than five Business Days prior to the
initial filing of a Registration Statement or Prospectus and no fewer
than two Business Days prior to the filing of any amendment or sup-
plement thereto (other than any document that would be incorporated
or deemed to be incorporated therein by reference), furnish to the
Holders of the Transfer Restricted Securities, their Special Counsel
and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the
review of such Holders, their Special Counsel and such underwriters,
if any, and cause the officers and directors of the Company, counsel
to the Company and independent certified public accountants to the
Company to respond to such inquiries as shall be necessary in
connection with such Registration Statement, in the opinion of re-
spective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act.
The Company shall not file any such Registration Statement or related
Prospectus or any amendments or supplements thereto to which the
Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities, their Special Counsel, or the managing under-
writers, if any, shall reasonably object on a timely basis;
<PAGE>
(b) Prepare and file with the SEC such amendments, in-
cluding post-effective amendments, to each Registration Statement as
may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities
covered by such Registration Statement during such period in accor-
dance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented; provided, however, that the Company
shall not be deemed to have kept a Registration Statement effective
during the Effectiveness Period if it voluntarily takes or fails to
take any action that results in selling Holders of the Transfer
Restricted Securities covered thereby not being able to sell such
Transfer Restricted Securities pursuant to Federal securities laws
during that period (and the time period during which such Regis-
tration Statement is required to remain effective hereunder shall be
extended by the number of days during which such selling Holders of
the Transfer Restricted Securities are not able to sell Transfer Re-
stricted Securities).
(c) Notify the Holders of the Transfer Restricted
Securities to be sold or their Special Counsel and the managing
underwriters, if any, promptly (and in the case of an event specified
by clause (i)(A) of this paragraph in no event fewer than two
Business Days prior to such filing), and (if requested by any such
person), confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to
be filed, and, (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other Federal or state governmental au-
thority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or injunc-
tion suspending or enjoining the use or the effectiveness of a Regis-
tration Statement or the initiation of any proceedings for that pur-
pose, (iv) if at any time any of the representations and warranties
of the Company contained in any agreement (including any underwriting
agreement) contemplated by Section 3(m) hereof cease to be true and
correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Transfer
Restricted Securities for sale in any jurisdiction, or the initiation
or threat of any proceeding for such purpose, and (vi) of the happen-
ing of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registra-
tion Statement, Prospectus or documents so that, in the case of the
<PAGE>
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, not
misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(d) Use its reasonable best efforts to avoid the issu-
ance of, or, if issued, obtain the withdrawal of any order enjoining
or suspending the use or effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Transfer Restricted Securities for sale
in any jurisdiction, at the earliest practicable moment;
(e) If requested by the managing underwriters, if any,
or the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold in connection with such
offering, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing
underwriters, if any, and such Holders agree should be included
therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amend-
ment; provided, however, that the Company shall not be required to
take any action pursuant to this Section 3(e) that would, in the
opinion of counsel for the Company, violate applicable law;
(f) Furnish to each Holder of the Transfer Restricted
Securities, their Special Counsel and each managing underwriter, if
any, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements
(but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless requested
in writing by such Holder, counsel or managing underwriter);
(g) Deliver to each Holder of the Transfer Restricted
Securities, their Special Counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement
thereto as such persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of the Transfer
Restricted Securities and the underwriters, if any, in connection
with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto;
<PAGE>
(h) Prior to any public offering of the Transfer
Restricted Securities, use its reasonable best efforts to register or
qualify or cooperate with the Holders of the Transfer Restricted
Securities to be sold or tendered for, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Transfer Restricted Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any Holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so
subject;
(i) In connection with any sale or transfer of the
Transfer Restricted Securities that will result in such securities no
longer being the Transfer Restricted Securities, cooperate with the
Holders and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing the
Transfer Restricted Securities to be sold, which certificates shall
not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company and to enable such Transfer
Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may
request at least two Business Days prior to any sale of the Transfer
Restricted Securities;
(j) Use its reasonable best efforts to cause the
offering of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States,
except as may be required as a consequence of the nature of such
selling Holder's business, in which case the Company will cooperate
in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Transfer Restricted Securities;
provided, however, that the Company shall not be required to register
the Transfer Restricted Securities in any jurisdiction that would
subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in
any such jurisdiction where it is not then so subject or to require
the Company to qualify to do business in any jurisdiction where it is
not then so qualified;
<PAGE>
(k) Upon the occurrence of any event contemplated by
Section 3(c)(vi) hereof, as promptly as practicable, prepare a
supplement or amendment, including, if appropriate, a post-effective
amendment, to each Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(l) Prior to the effective date of the first Registra-
tion Statement relating to the Transfer Restricted Securities, to
provide a CUSIP number for the Transfer Restricted Securities;
(m) Enter into such agreements (including an under-
writing agreement in form, scope and substance as is customary in
underwritten offerings) and take all such other reasonable actions in
connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
being sold) in order to expedite or facilitate the disposition of
such Transfer Restricted Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not
the registration is an underwritten registration, (i) make such
representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to
the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of
them), and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein,
in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the
same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and Special Counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each selling
Holder of the Transfer Restricted Securities and each of the under-
writers, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and underwriters; (iii)
use its best efforts to obtain customary "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling
Holder of the Transfer Restricted Securities and each of the under-
writers, if any, such letters to be in customary form and covering
<PAGE>
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling Holders of
the Transfer Restricted Securities and the underwriters, if any, than
those set forth in Section 5 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities covered by such Regis-
tration Statement and the managing underwriters); and (v) deliver
such documents and certificates as may be reasonably requested by the
Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold, their Special Counsel and the
managing underwriters, if any, to evidence the continued validity of
the representations and warranties made pursuant to clause (i) of
this Section 3(m) and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(n) Make available for inspection by a representative
of the Holders of the Transfer Restricted Securities being sold, any
underwriter participating in any such disposition of the Transfer
Restricted Securities, if any, and any attorney, consultant or
accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably
request (including with respect to business and assets acquired or to
be acquired to the extent that such information is available to the
Company), and cause the officers, directors, agents and employees of
the Company and its subsidiaries (including with respect to business
and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in
each case reasonably requested by any such representative, under-
writer, attorney, consultant or accountant in connection with such
Registration Statement, provided, however, that such persons shall
first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be
kept confidential by such persons, unless (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in
connection with the filing of any Registration Statement or the use
of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or
(iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a con-
fidentiality agreement;
<PAGE>
(o) Provide an indenture Trustee for the Transfer
Restricted Securities and cause the Indenture to be qualified under
the TIA not later than the effective date of the first Registration
Statement relating to the Transfer Restricted Securities; and in
connection therewith, cooperate with the Trustee under the Indenture
and the Holders of the Transfer Restricted Securities to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute,
and use its reasonable best efforts to cause such Trustee to execute,
all customary documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC
to enable the Indenture to be so qualified in a timely manner;
(p) Comply with applicable rules and regulations of
the SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act), no later than 45 days after
the end of any 12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter
after the effective date of a Registration Statement, which statement
shall cover said period, consistent with the requirements of Rule
158; and
(q) (i) list all Common Stock covered by such Registra-
tion Statement on any securities exchange on which the Common Stock
is then listed or (ii) authorize for quotation on the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of NASDAQ all Common Stock
covered by such Registration Statement if the Common Stock is then so
authorized for quotation.
The Company may require each seller of the Transfer
Restricted Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution
of such Transfer Restricted Securities as is required by law to be
disclosed in the applicable Registration Statement and the Company
may exclude from such registration the Transfer Restricted Securities
of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
<PAGE>
If any such Registration Statement refers to any Holder
by name or otherwise as the holder of any securities of the Company,
then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to
such Holder, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder
of the investment quality of the Company's securities covered thereby
and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder
by name or otherwise is not required by the Securities Act or
any similar Federal statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required.
Each Holder of the Transfer Restricted Securities agrees
by acquisition of such Transfer Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(v) or
3(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(k)
hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incor-
porated by reference in such Prospectus. If the Company shall give
any such notice, the Effectiveness Period shall be extended by the
number of days during such period from and including the date of the
giving of such notice to and including the date when each seller of
the Transfer Restricted Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof or (y) the
Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorpo-
rated by reference in such Prospectus.
<PAGE>
4. Registration Expenses
(a) All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne by
it whether or not any Registration Statement is filed or becomes
effective and whether or not any securities are issued or sold
pursuant to any Registration Statement. The fees and expenses re-
ferred to in the foregoing sentence shall include, without limita-
tion, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to
be made with the National Association of Securities Dealers, Inc. and
(B) in compliance with securities or Blue Sky laws (including,
without limitation and in addition to that provided for in (b) below,
fees and disbursements of counsel for the underwriters or Special
Counsel for the Holders in connection with Blue Sky qualifications of
the Transfer Restricted Securities and determination of the
eligibility of the Transfer Restricted Securities for investment
under the laws of such jurisdictions as the managing underwriters, if
any, or Holders of a majority in aggregate principal amount of the
Transfer- Restricted Securities may designate)), (ii) printing
expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriters, if any, or by the
Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities included in or tendered for in
connection with any Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and Special Counsel for the Holders (plus any
local counsel, deemed appropriate by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities), in
accordance with the provisions of Section 4(b) hereof, (v) fees and
disbursements of all independent certified public accountants
referred to in Section 3(m)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by
or incident to such performance), (vi) Securities Act liability
insurance, if the Company so desires such insurance, and (vii) fees
and expenses of all other persons retained by the Company. In addi-
tion, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit, and the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities
exchange. Notwithstanding the foregoing or anything in this Agree-
ment to the contrary, each Holder shall pay all underwriting dis-
counts and commissions of any underwriters or broker-dealers with
respect to any Transfer Restricted Securities sold by it.
<PAGE>
(b) In connection with any registration hereunder, the
Company shall reimburse the Holders of the Transfer Restricted
Securities being registered or tendered for in such registration for
the reasonable fees and disbursements of not more than one firm of
attorneys representing the selling Holders (in addition to any local
counsel), which firm shall be chosen by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities.
5. Indemnification
(a) The Company agrees to indemnify and hold harmless
(i) each of the Managers, (ii) each Holder of the Transfer Restricted
Securities, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in
this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners,
employees, representatives and agents of the Managers, each Holder of
the Transfer Restricted Securities, or any controlling person (any
person referred to in clause (i), (ii), (iii) or (iv) may hereinafter
be referred to as an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any
Prospectus or form of Prospectus or supplement thereto, in light of
the circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Indemnified Person furnished in writing to the Company by or on
behalf of such Indemnified Person expressly for use therein; provided
that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting such losses, claims, damages,
liabilities and judgments purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in
such preliminary Prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have been furnished
to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
<PAGE>
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such
Prospectus or any amendment or supplement thereto and with respect to
which indemnity may be sought against the Company, such Indemnified
Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person, unless (i) the employment
of such counsel shall have been specifically authorized in writing by
the Company, (ii) the Company shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Indemnified
Person and the Company and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the Company (in which case the Company shall not have
the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by
such Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred). The Company shall not be liable
for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Indemnified Person
from and against any loss or liability by reason of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
<PAGE>
(c) In connection with any Registration Statement in
which a Holder of the Transfer Restricted Securities is
participating, such Holder of the Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers and any person controlling the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (and, in the case of an underwriter
registration, the underwriters and their respective directors,
officers and persons controlling such underwriters within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange
Act) , to the same extent as the foregoing indemnity from the Company
to each Indemnified Person but only with reference to information
relating to such Indemnified Person furnished in writing by or on
behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against
the Company, any of its directors, any such officer or any person
controlling the Company based on such Registration Statement and in
respect of which indemnity may be sought against any Indemnified
Person, the Indemnified Person shall have the rights and duties given
to the Company (except that if the Company shall have assumed the
defense thereof, such Indemnified Person shall not be required to do
so, but may employ separate counsel therein and participate in
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person), and the Company, its direc-
tors, any such officers and any person controlling the Company shall
have the rights and duties given to the Indemnified Person, by
Section 5(b) hereof.
(d) If the indemnification provided for in this
Section 5 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and each Indemnified Person on the other hand from the offering of
the Debentures or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and each
such Indemnified Person in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or judgments, as well as any other relevant equitable considerations.
The relative fault of the Company and each such Indemnified Person
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the
Company or such Indemnified Person and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
<PAGE>
The Company and the Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 5(d)
were determined by pro rata allocation (even if the Indemnified
Person were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which
the total net profit received by it in connection with the sale of
the Debentures pursuant to this Agreement exceeds the amount of any
damages which such Indemnified Person has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrep-
resentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Indemnified
Persons' obligations to contribute pursuant to this Section 5(d) are
several in proportion to the respective amount of Debentures included
in any such Registration Statement by each Indemnified Person and not
joint.
6. Rules 144 and 144A
The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not
required to file such reports but in the past had been required to or
did file such reports, it will, upon the request of any Holder of the
Transfer Restricted Securities, make available other information as
required by, and so long as necessary to permit, sales of its
Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations
(a) If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or
managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or
delayed).
<PAGE>
No person may participate in any underwritten registra-
tion hereunder unless such person (i) agrees to sell such person's
Transfer Restricted Securities on the basis reasonably provided in
any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms
of such underwriting arrangements.
(b) Each Holder of the Transfer Restricted Securities
agrees, if requested (pursuant to a timely written notice) by the
managing underwriters in an underwritten offering or placement agent
in a private offering of the Company's securities, not to effect any
private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its
affiliates, officers, directors, employees and controlling persons of
any of the Debentures, in the case of an offering of the Company's
debt securities, or the Common Stock, in the case of an offering of
the Company's equity securities), during the period beginning 10 days
prior to, and ending 90 days after, the closing date of the
underwritten offering.
The foregoing provisions shall not apply to any Holder
of the Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such
agreement.
<PAGE>
8. Miscellaneous
(a) Remedies. In the event of a breach by the
Company, or by a Holder of the Transfer Restricted Securities, of any
of their obligations under this Agreement, each Holder of the
Transfer Restricted Securities or the Company, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Agreement. The Company and each Holder of the Transfer
Restricted Securities agree that monetary damages would not be ade-
quate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in respect
of such breach, it shall waive the defense that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. The Company shall not
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders of the Transfer
Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. The Company is not currently a party to any
agreement granting any registration rights with respect to any of its
debt or equity securities to any person, other than pursuant to a
certain Registration Rights Agreement dated September 6, 1994 by and
among the Company and Mallory Factor. Without limiting the generali-
ty of the foregoing, without the written consent of the Holders of a
<PAGE>
majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, the Company shall not grant to any
person the right to request it to register any of its debt or equity
securities under the Securities Act unless the rights so granted are
subject in all respects to the prior rights of the Holders of the
Transfer Restricted Securities set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of
this Agreement.
(c) No Piggyback on Registrations. The Company shall
not grant to any of its security holders (other than the Holders of
the Transfer Restricted Securities in such capacity and pursuant to
the Registration Rights Agreement referred to in clause 8(b) above)
the right to include any of its securities in any Shelf Registration
other than Transfer Restricted Securities.
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, without the
written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities on a
fully converted basis; provided, however, that, for the purposes of
this Agreement, Transfer Restricted Securities that are owned,
directly or indirectly, by either the Company or an Affiliate of the
Company are not deemed outstanding. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of the
Transfer Restricted Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of the Transfer
Restricted Securities may be given by Holders of a majority of
the Transfer Restricted Securities (on a fully converted basis)
being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(e) Notices. All notices and other communications
provided for herein shall be made in writing by hand-delivery, next-
day air courier, certified first-class mail, return receipt
requested, telex or telecopy:
(i) if to the Company, as provided in the
Subscription Agreement,
(ii) if to the Managers, as provided in the
Subscription Agreement, or
(iii) if to any other person who is then the
registered Holder of any Transfer Restricted
Securities, to the address of such Holder as
it appears in the Debenture or Common
Stock register of the Company.
<PAGE>
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; one Business Day after
being timely delivered to a next-day air courier; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to the
benefit of each Holder of the Transfer Restricted Securities. The
Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder of the Transfer Restricted
Securities. Notwithstanding the foregoing, no transferee shall have
any of the rights granted under this Agreement until such transferee
shall acknowledge its rights and obligations hereunder by a signed
written statement of such transferee's acceptance of such rights and
obligations.
(g) Counterparts. This Agreement 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.
(h) Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVO-
CABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any
term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
<PAGE>
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof. All references made in this Agreement to
"Section" and "paragraph" refer to such Section or paragraph of this
Agreement, unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover its
reasonable attorneys' fees in addition to any other available
remedy.
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed as of the date
first written above.
CHECKPOINT SYSTEMS, INC.
By: ___________________
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date
first above written.
NATWEST SECURITIES LIMITED
DEUTSCHE MORGAN GRENFELL/C.J. LAWRENCE INC.
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
HD BROUS & CO., INC.
For themselves and, as representatives, for each
of the several Managers
By: NATWEST SECURITIES LIMITED
By: _____________________________
Name:
Title:
<PAGE>
SCHEDULE I
MANAGERS
NatWest Securities Limited
Deutsche Morgan Grenfell/C.J. Lawrence Inc.
PaineWebber International (U.K.) Ltd.
HD Brous & Co., Inc.
Banca del Gottardo
Bank Julius Baer & Co. AG
Cazenove & Co.
Darier, Hentsch & Cie
Dresdner Bank - Kleinwort Benson
Lazard Brothers & Co. Limited
Lombard, Odier & Cie
UBS Limited
<PAGE>
