<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 10, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CTS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
INDIANA 3670 35-0225010
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
</TABLE>
905 WEST BOULEVARD NORTH
ELKHART, INDIANA 46514
(219) 293-7511
(Principal Executive Offices)
JEANNINE M. DAVIS, ESQ.
EXECUTIVE VICE PRESIDENT--ADMINISTRATION,
GENERAL COUNSEL AND SECRETARY
CTS CORPORATION
905 WEST BOULEVARD NORTH
ELKHART, INDIANA 46514
TELEPHONE: (219) 293-7511
(Agent for Service)
------------------------------
COPIES TO:
MARILYN W. SONNIE, ESQ.
JONES, DAY, REAVIS & POGUE
599 LEXINGTON AVENUE
32ND FLOOR
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 326-3939
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement, as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
------------------------
CALCULATION TABLE ON NEXT PAGE
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT WILL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) UNIT(1)(2) PRICE(1)(2)(3)(4) FEE
<S> <C> <C> <C> <C>
Debt Securities(5)...................... } } } }
Common Stock, without par value......... } } } }
Preferred Stock, without par value(5)... } } } }
Warrants(5)............................. } } } }
Total............................... $500,000,000 $500,000,000 $500,000,000 $139,000
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies. The amount
specified represents the aggregate initial offering price of the securities
registered hereunder and the exercise price for any securities issuable upon
exercise of warrants.
(2) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3.
(3) Estimated for the sole purpose of computing the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933. The proposed maximum offering
price per unit will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities registered
hereunder.
(4) The number of shares of common stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) of the Securities Act of 1933.
(5) Also includes such indeterminate principal amount of debt securities or such
indeterminate number of shares of preferred stock or common stock as may be
issued upon conversion, exchange or exercise of any debt securities,
preferred stock, or warrants that provide for conversion, exchange or
exercise into or for such other securities.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER AND SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION DATED NOVEMBER 10, 1999
PROSPECTUS
CTS CORPORATION
905 WEST BOULEVARD NORTH
ELKHART, INDIANA 46514
(219) 293-7511
$500,000,000
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
------------------
We will provide specific terms of the securities offered to the public in
supplements to this prospectus.
This prospectus may be used to offer and sell securities only if accompanied
by a prospectus supplement. The prospectus supplement is more specific than this
prospectus and to the extent information differs from this prospectus, you
should rely on the information in the prospectus supplement. You should read
this prospectus and any supplement very carefully before you invest.
------------------------
Our common stock is listed on the New York Stock Exchange under the trading
symbol "CTS." Any common stock we sell pursuant to a prospectus supplement will
be listed on the New York Stock Exchange, subject to official notice of
issuance.
------------------------
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 3 OF THIS
PROSPECTUS.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION
HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
This prospectus is dated , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
The Company................................................. 3
A Warning about Forward-looking Statements.................. 3
Risks Related to Our Business............................... 3
Use of Proceeds............................................. 6
Ratio of Earnings to Fixed Charges.......................... 7
Description of Debt Securities.............................. 7
Description of Stock........................................ 12
Indiana Business Corporation Law and the Articles of
Incorporation and Bylaws.................................. 13
Description of Warrants..................................... 17
About this Prospectus....................................... 17
Where You Can Find More Information......................... 18
Plan of Distribution........................................ 18
Legal Matters............................................... 19
Experts..................................................... 19
</TABLE>
2
<PAGE>
THE COMPANY
CTS is headquartered in Elkhart, Indiana. We design, manufacture, assemble
and sell a broad line of passive electronic components and electronic
assemblies. Our main customers are worldwide original equipment manufacturers in
the computer equipment, automotive and communications equipment businesses.
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
"Forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Exchange Act are contained in, or
incorporated by reference into, this prospectus. Forward-looking statements are
typically identified by the words "anticipate," "believe," "estimate," "expect,"
"project," "imply," "intend" and similar expressions. Forward-looking statements
are subject to a number of risks and uncertainties, many of which are beyond our
control. Our actual operating results, liquidity and financial condition could
be materially different from those contemplated by these forward-looking
statements for various reasons, including risks associated with our integration
of acquired operations, competitive factors and pricing pressures, shifts in
market demand and general economic conditions, risks associated with our foreign
operations and developments and other factors discussed below.
We can not guarantee that the results and events contemplated by
forward-looking information will in fact occur and you should not rely unduly on
these forward-looking statements. We do not undertake any obligation to update
or revise any forward-looking statements.
RISKS RELATED TO OUR BUSINESS
WE MAY BE UNABLE TO KEEP UP WITH RAPID TECHNOLOGICAL CHANGES WHICH COULD MAKE
SOME OF OUR PRODUCTS OR PROCESSES OBSOLETE BEFORE WE REALIZE ON OUR INVESTMENT.
The field of technology relating to our research and development activities
has undergone rapid and significant technological development. Specifically, the
market for products in the telecommunications industry is characterized by
technological change, frequent new product introductions and enhancements,
changes in customer requirements and emerging industry standards. The
introduction of products embodying new technologies and the emergence of new
industry standards could render our existing products obsolete and unmarketable
before we can recover any or all of our research, development and
commercialization expenses. The life cycles of our products are difficult to
estimate.
Our future success will depend upon our ability to develop and introduce new
products and product enhancements on a timely basis that keep pace with
technological developments and emerging industry standards and address
increasingly sophisticated requirements of our customers. We cannot assure you
that we will be successful in developing and marketing new products or product
enhancements that respond to technological changes or evolving industry
standards. Nor can we assure you that we will not experience difficulties that
could delay or prevent the successful development, introduction and marketing of
these new products or product enhancements, or that our new products or product
enhancements will adequately meet the requirements of the marketplace and
achieve market acceptance. If we are unable, for technological or other reasons,
to develop and market new products or product enhancements in a timely and
cost-effective manner, our business, financial condition and results of
operations could be materially adversely affected.
IF WE ARE UNABLE TO BROADEN AND DEEPEN OUR SENIOR MANAGEMENT TEAM OUR BUSINESS
COULD SUFFER
With the Motorola components acquisition in early 1999, CTS substantially
increased in size, diversified its product offerings and added substantial
intellectual property assets and research and development functions to its
business. The Motorola acquisition followed another substantial acquisition
3
<PAGE>
completed by CTS in 1997. CTS recently realigned senior management group and is
in the process of recruiting other senior managers to respond to these
developments and as a part of it ordinary succession planning process. We can
not guarantee that we will be successful in our efforts to broaden and deepen
our senior management team and our failure to do so could have a material
adverse effect on our business, financial condition and results of operations.
IF WE ARE UNABLE TO MAINTAIN OUR EXISTING CUSTOMER BASE, OUR BUSINESS COULD
SUFFER.
A portion of our net sales are made directly to original equipment
manufacturers. Our customer base is highly concentrated and, over the past three
years, our top ten customers have accounted for a significant percent of our
sales. The termination by one or more of these customers of its relationship
with us could have a material adverse effect upon our revenues and our financial
condition.
WE FACE RISKS AS AN INTERNATIONAL COMPANY WITH NON-U.S. REVENUES.
We are an international company and approximately a fourth of our assets are
non-U.S. A substantial portion of these assets, other than cash and cash
equivalents, cannot be readily liquidated and are exposed to the normal risks of
international operations, including:
- political and economic instability;
- expropriation;
- currency controls;
- fluctuations in exchange rates;
- changes in government regulation; and
- exposure to different legal standards and exchange rates.
In addition, these same factors may also place us at a competitive
disadvantage to some of our non-U.S. competitors.
WE MAY NOT BE ABLE TO SUCCESSFULLY IMPLEMENT OUR ACQUISITION STRATEGY DUE TO THE
LACK OF AVAILABLE SUITABLE CANDIDATES, DIVERSION OF MANAGEMENT TIME, THE RISK OF
UNDISCLOSED LIABILITIES AND LACK OF AVAILABLE CAPITAL.
Our growth has been achieved, in part, by acquisitions. As part of our
overall business plan, we may from time to time consider strategic acquisitions
of other companies or investments in joint ventures that we believe can benefit
from our operations, management and access to capital or enhance our
relationships with existing or potential new customers. Our ability to grow by
acquisition is dependent upon, and may be limited by, the availability of
suitable acquisition candidates and capital. In addition, growth by acquisition
involves risks that could adversely affect our operating results, such as:
- the substantial amount of management time that may be diverted from
operations in order to pursue and complete acquisitions;
- difficulties in managing the additional operations and personnel of
acquired companies; and
- the potential loss of key employees of acquired companies.
Although we perform a due diligence investigation of each business that we
acquire, there may nevertheless be liabilities of the acquired companies that we
fail or are unable to discover during our due diligence investigation and for
which we, as a successor owner, may be responsible. In connection with our
acquisitions, we generally seek to minimize the impact of these liabilities by
obtaining indemnities and warranties from the seller, if practicable. However,
these indemnities and warranties may not fully cover
4
<PAGE>
the liabilities due to their limited scope, amount, or duration, the financial
limitations of the indemnitor or warrantor or other reasons and may not be
obtainable in mergers and other transactions.
We recently acquired the Components Products Division of Motorola, Inc. and
are still in the process of integrating its operations. This business has
represented 39% of our sales over the first nine months of 1999. Our business
and financial results may be adversely affected by the need to divert management
time away from normal day to day business activities to attend to operating
difficulties related to the integration of this division and other businesses we
may acquire in the future. In addition, there can be no assurance that any
acquired business, including the former Motorola divisions, will contribute to
our financial results in the manner anticipated at the time of acquisition.
Further, future acquisitions may require us to seek additional debt or
equity financing, which could potentially result in diluted earnings per share
or increased leverage, taxes, and amortization of goodwill, among others. In
addition, substantial time and expense may be required to reconcile the
accounting policies and practices of the acquired companies with our policies
and practices. These factors could adversely affect our future operating
results, financial position and cash flows.
WE FACE RISKS RELATING TO THE PROTECTION OF OUR INTELLECTUAL PROPERTY
The success of our business depends, in part, upon our ability to protect
trade secrets, copyrights, and patents, obtain or license patents and operate
without infringing on the rights of others. We rely on a combination of trade
secrets, copyrights, patents, nondisclosure agreements and technical measures to
protect our proprietary rights in our products and technology. Such protection
may not preclude competitors from developing products with features similar to
our products.
We believe that patents will play an increasingly important role in our
commercial business. However, we cannot assure that any issued patent will
provide us with any competitive advantages nor can we assure that the patents
will not be challenged by third parties or that the patents of others will not
adversely affect our ability to do business.
WE MAY BE UNABLE TO COMPETE EFFECTIVELY AGAINST LARGER COMPETITORS.
We operate in a highly fragmented and competitive industry. Although no
single competitor competes with us along all product lines, we compete with a
variety of suppliers with different subsets of our products. Additionally, many
of our customers are seeking to consolidate their business among one or more
preferred or qualified suppliers. If any customer becomes dissatisfied with our
prices, quality or timeliness of delivery, among other things, it could award
future business or, in an extreme case, move existing business to our
competitors. Moreover, some of our customers could choose to manufacture and
develop particular components themselves rather than purchase them from us. We
cannot assure you that our products will continue to compete successfully with
our competitors' products, including original equipment manufacturers
themselves, many of which are significantly larger and have greater financial
and other resources.
DISRUPTIONS IN THE AUTOMOTIVE INDUSTRY COULD CAUSE THE LOSS OF ONE OR MORE OF
OUR CUSTOMERS WHICH COULD HARM OUR BUSINESS.
A significant market for our products is the automotive industry. The
automotive industry is generally highly unionized and some of our customers
have, in the past, experienced labor disruptions. The automotive industry is
also cyclical in nature and subject to changes in general economic conditions.
General economic and specific industry downturns, as well as a prolonged
disruption in one more of our customers' production could have a negative impact
on the market for our products and therefore could have a material adverse
effect on our business and financial results.
5
<PAGE>
ANTI-TAKEOVER PROVISIONS WOULD DETER OR PREVENT A CHANGE OF CONTROL.
We are an Indiana corporation subject to Indiana state law. Some of these
state laws could interfere with or restrict takeover bids or other
change-in-control events affecting us. Also, there are provisions in our
articles of incorporation, bylaws, and other agreements to which we are a party,
which could delay, defer or prevent a change in control of CTS, even if a change
in control would be beneficial to shareholders. We have also opted out of
Indiana's "control share acquisition" provisions, which restrict the voting
rights of shares acquired in transactions which cause the beneficial owner of
the shares to exceed specified ownership thresholds. In addition, we have
entered into a rights agreement which provides for a dividend of one right for
each share of our common stock outstanding on September 10, 1998. The rights
become exercisable upon the occurrence of specified events. The existence of the
rights could also deter a takeover attempt.
In addition, our articles of incorporation allow us to issue up to
75,000,000 shares of common stock and 25,000,000 shares of preferred stock
without shareholder approval. The board of directors has the authority to
determine the price and terms under which the additional common or preferred
stock may be issued. Issuance of this common and preferred stock could make it
more difficult for a third party to acquire control of CTS.
USE OF PROCEEDS
The net proceeds from the sale of the offered securities will be used for
general corporate purposes, including repayment of debt, acquisitions, research
and development, plant expansions and further investments in technology. Any
additional uses of net proceeds will be discussed in the accompanying prospectus
supplement.
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
SIX MONTHS FISCAL YEAR FISCAL YEAR FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED ENDED ENDED ENDED
JULY 4, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997 1996 1995 1994
---------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of
earnings to fixed
charges
(unaudited)......... 5.6x* 18.6x 13.3x 19.3x 13.7x 19.3x
</TABLE>
- ------------------------
* On a pro forma basis after giving effect to the acquisition of the
components products division of Motorola, our consolidated ratio of
earnings to fixed changes (unaudited) for the fiscal year ended
December 31, 1998 would have been 4.4x.
For these ratios, "earnings" consist of income before income taxes and
extraordinary items plus fixed charges (excluding capitalized interest). "Fixed
charges" consist of interest incurred on indebtedness, amortization of debt
expense, and that portion of rental expense on operating leases deemed to be the
equivalent of interest. These computations are made on a consolidated basis with
our subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
We may offer unsecured general obligations of our company in the form of
either senior or subordinated debt, referred to generally as debt securities.
Senior debt includes our notes, debt, and guarantees, which are for money
borrowed and not subordinated. Subordinated debt, designated at the time it is
issued, is entitled to interest and principal payments after the senior debt
payments.
The senior and subordinated debt will be issued under one or more indentures
between CTS and a U.S. banking institution. The form of indenture for senior
debt has been filed as an exhibit to the registration statement of which this
prospectus forms a part and, if we decide to issue any subordinated debt, the
form of indenture for the subordinated debt will be filed as an exhibit to such
registration statement by means of a post-effective amendment. You should read
the indenture for provisions that may be important to you.
We have summarized select provisions of the senior debt indenture below. Any
subordinated indenture will contain substantially similar terms, plus additional
terms relating to subordination. This summary is not complete. References to
section numbers of the indenture have been included so that you can easily
locate these provisions. Capitalized terms used in the summary have the meanings
specified in the indenture.
The indenture does not limit the aggregate amount of debt securities that
may be issued. The debt securities may be issued from time to time in more than
one series and may be issued at a discount from their stated principal amount
and in any currency designated by us.
A prospectus supplement and a supplemental indenture relating to any series
of debt securities being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
- The title and type of the debt securities;
- The total principal amount of the debt securities;
- The interest rate which the debt securities will bear and the interest
payment dates for the debt securities;
7
<PAGE>
- Any optional redemption periods;
- Any mandatory or optional sinking fund or other provisions that would
obligate us to repurchase or otherwise redeem the debt securities;
- Any provision granting special rights to holders when a specified event
occurs;
- The denomination in which any debt securities will be issuable;
- The currency in which payment of principal, premiums and interest will be
payable, if it is not the currency of the United States of America;
- The formula used to determine the amounts of payments of principal,
premium and interest;
- If the debt securities are issued in the form of global securities, the
identity of the depositary;
- Any subordination provisions;
- Any special tax implication of the debt securities, including provisions
for "original issue discount securities," if offered; and
- Any other terms of the debt securities.
The prospectus supplement for each issuance of debt securities will state
whether the securities will be issued in the registered form and in what minimum
amounts. The payment of principal premium, if any, and interest on the debt
securities will be payable at an office or agency maintained by CTS. This office
will also register the exchange, conversion or transfer of debt securities.
GLOBAL SECURITIES
The debt securities issued may be in the form of global certificates that
will be deposited with a depositary identified in the applicable prospectus
supplement. The global securities issued will be equal to the aggregate
principal amount of debt securities of the series. Unless it is exchanged in
whole or in part for debt securities in registered form, a global certificate
may generally be transferred only as a whole unless it is being transferred to
nominees or the depositary.
The terms of any portion of debt securities to be represented by a global
security will be described in an applicable prospectus supplement.
The following provisions will apply to depositary arrangements. A global
security to be deposited with or on behalf of a depositary will be registered in
its name. The depositary will, upon deposit of the global security, credit the
accounts of the institutions that have accounts with the depositary. If the
securities are sold directly by CTS, the accounts to be credited will be
designated by the underwriters, agents or CTS.
Beneficial interest in such global securities will be limited to
participants or persons that hold interests through them. Ownership and transfer
of beneficial interest will be recorded in the books maintained by the
depositary or its nominee. The laws of some jurisdictions require physical
delivery of securities that might impair transfers of beneficial interest in a
global security.
The depositary registered as owner of such global security will be the sole
owner for all purposes of the applicable indenture. Unless the prospectus
supplement provides otherwise, each owner of beneficial interest must rely on
the procedures of the depositary and participants in the depositary, if
applicable, to exercise its rights as a holder of a global security.
The prospectus supplement will describe the method of payment of principal,
interest and premium, if any, and interest on a global security. Payments of
principal, premium and interest on debt securities will be made to the
registered depositary or its nominee.
8
<PAGE>
CTS, the Trustee, any paying agent or the registrar of debt securities have
no responsibility or liability to record payments made on account of beneficial
ownership interests.
Unless otherwise stated, The Depository Trust Company will act as depositary
for each series of global securities. Beneficial interests in global securities
will be shown on, and transfers of global securities will be effected only
through, records maintained by The Depository Trust Company and its
participants.
SUBORDINATION
If we decide to issue any or all of the debt securities as subordinated
debt, the prospectus supplement relating to such subordinated debt will set
forth the terms of any indenture that may apply and the right of the holders of
the subordinated debt to the extent such terms differ from those described
herein with respect to the senior debt. In general, under the indenture, payment
of the principal, interest and any premium on the subordinated debt securities
will be subordinated and junior in right of payment to the prior payment in full
of all senior debt. Such indenture will also provide that no payment of
principal, interest and any premium on the subordinated debt securities may be
made in the event:
- of any insolvency, bankruptcy or similar proceeding involving CTS or our
property, or
- we fail to pay the principal, interest and premium or any other amounts on
any senior debt when due.
Such indenture will not limit the amount of senior debt that we may incur.
Senior debt will be defined to include all notes or other unsecured
evidences of indebtedness including guarantees of CTS for money borrowed by CTS,
not expressly stated to be subordinate or junior in right of payment to any
other indebtedness of CTS.
CERTAIN COVENANTS
Under the indenture, we will:
- maintain an office or agency as a place of payment;
- deposit sufficient funds with any paying agent or trust, on and before the
due date for any principal, interest or premium;
- pay all taxes and other assessments imposed on us or our subsidiaries or
their properties;
- maintain all business properties in working order;
- preserve our existence, charter and statutory rights, and franchises, and
cause our subsidiaries to do the same; and
- comply with all applicable laws.
Any restrictive covenants applicable to any series of debt securities will
be described in a prospectus supplement.
EVENTS OF DEFAULT
"Event of Default" when used in the indenture, will mean any of the
following:
(1) failure to pay the principal or any premium on any debt security when
due;
(2) failure to pay interest on any debt security for 30 days;
(3) failure to deposit any sinking fund payment when due;
9
<PAGE>
(4) failure to perform any other covenant in the indenture that continues
for 60 days after being given written notice;
(5) failure to pay any other indebtedness at maturity or when due in
excess of $100 million and which results in the indebtedness becoming
due prior to its stated maturity;
(6) particular events of bankruptcy, insolvency or reorganization of our
company; and
(7) any other Event of Default included in any indenture or supplemental
indenture.
Once a default occurs the Trustee will give notice to all holders within
time periods prescribed by the Trust Indenture Act of 1939, except that, in the
case of a breach of particular covenants, the Trustee will be prohibited from
giving such notice for at least 30 days after such breach occurs.
If an Event of Default for any series of debt securities occurs and
continues, the Trustee or the holders of at least 25% in the aggregate principal
amount of the debt securities of that series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens subject to the conditions contained in the indenture, the holders
of an aggregate principal amount of the debt securities of that series could
void the declaration.
Other than duties in case of default, the Trustee is not obligated to
exercise any of its rights or powers under the indenture at the request, order
or direction of any holders, unless the holders offer the Trustee reasonable
indemnity. We will be required to furnish the Trustee with notice of any
incurred event of default within 10 days of our becoming aware of its
occurrence. If they provide this reasonable indemnification, the holders of
majority in principal amount of any series of debt securities may direct the
time, method and place of conducting any proceeding or any remedy available to
the Trustee or exercising any power conferred upon the Trustee, for any series
of debt securities.
CTS will provide the Trustee a statement of its performance under the
indenture and any default on a yearly basis.
MODIFICATION AND WAIVER
Under the indenture, our rights and obligations and the rights of the
holders may be modified with the consent of the holders of a majority in
aggregate principal amount of the outstanding debt securities of each series
affected by the modification.
The following modifications are not effective against any holder without its
consent:
- change in the principal or interest payment terms of any debt security;
- reduction in the principal amount, the rate of interest, or premium, if
any, payable upon redemption of any debt security;
- reduction of the principal amount payable upon acceleration of an original
issue discount security; and
- changes in the place or currency of payment of principal, interest or
premium, if any.
Holders of a majority in the aggregate principal amount of any series of
debt securities, may waive CTS' compliance with certain covenants of the
indenture, on behalf of all holders. They may also waive any past defaults under
the indenture unless any such default relates to the payment of principal,
interest or any premium.
DEFEASANCE
We will be discharged from our obligations on the debt securities of any
series at any time if we deposit with the Trustee sufficient cash or government
securities to pay the principal, interest, any
10
<PAGE>
premium and any other sums due to the stated maturity date or a redemption date
of the debt securities of the series if:
- no Event of Default has occurred or would occur as a result of this
deposit or, in the case of an Event of Default relating to our bankruptcy,
insolvency or reorganization, within 90 days of the deposit; and
- we deliver an opinion of counsel that the tax matters described below are
not applicable.
If this happens, the holders of the debt securities of the series will not be
entitled to the benefits of the indenture and we will be released from our
obligations to comply with the covenants described above under COVENANTS, except
for our obligations relating to registration of transfer and exchange of debt
securities and the replacement of lost, stolen or mutilated debt securities and
our obligations to maintain an office or agency in respect of the debt
securities and hold moneys for payment in trust. In addition, the Events of
Default relating to covenants from which we are released and those described in
clauses (3), (5) and (7) above under EVENTS OF DEFAULT will no longer be Events
of Default.
Under federal income tax law as of the date of this prospectus, a discharge
may be treated as an exchange of the related debt securities. Each holder may be
required to recognize gain or loss equal to the difference between the holder's
cost or other tax basis for the debt securities and the value of the holder's
interest in the trust. Holders may be required to include as income a different
amount than would be includable without the discharge. Prospective investors are
urged to consult their own tax advisers as to the consequences of a discharge,
including the applicability and effect of tax laws other than the federal income
tax law.
SATISFACTION AND DISCHARGE
We will be discharged from our obligations under the indenture when:
- we deliver all debt securities previously authenticated and delivered to
the Trustee for cancellation; or
- all debt securities have become payable or will be payable within one
year; or
- all debt securities will be redeemable within one year and we deposit with
the Trustee sufficient cash to pay the principal, interest and any premium
due on such debt securities.
REGARDING THE TRUSTEE
The indenture limits the right of the Trustee, should it become a creditor
of CTS within three months of, or subsequent to, a default by CTS to make
payment in full of principal of or interest on any series of debt securities
when due and payable, to obtain payment of claims, or to realize for its own
account on property received in respect of any such claim as security or
otherwise, unless and until such default is cured. However, the Trustee's rights
as a creditor of CTS will not be limited if the creditor relationship arises
from, among other things:
- the ownership or acquisition of securities issued under the indenture or
having a maturity of one year or more at the time of acquisition by the
Trustee;
- advances authorized by a receivership or bankruptcy court of competent
jurisdiction or by the indenture;
- disbursements made in the ordinary course of business in its capacity as
indenture Trustee, transfer agent, registrar, custodian, or paying agent
or in any other similar capacity;
- indebtedness created as a result of goods or securities sold in a cash
transaction or services rendered or premises rented; or
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- the acquisition, ownership, acceptance, or negotiation of drafts, bills of
exchange, acceptances, or other obligations.
The indenture does not prohibit the Trustee from serving as trustee under any
other indenture to which we may be a party from time to time or from engaging in
other transactions with us. If the Trustee acquires any conflicting interest and
there is an Event of Default with respect to any series of debt securities, it
must eliminate such conflict or resign.
LIMITATIONS ON MERGER AND OTHER COVENANTS
A merger or consolidation between CTS and another corporation is generally
permitted. We can also sell all or substantially all of our assets and property.
This can happen if we are the surviving person or the other person assumes all
responsibilities and liabilities under the indenture and no Event of Default
would occur. The surviving company must also be a corporation organized under
the United States laws and a foreign corporation would not qualify.
The remaining or acquiring corporation will be substituted for us in the
indenture with the same effect as if it had been an original party to the
indenture. Thereafter, the successor corporation may exercise our rights and
powers under the indenture, in our name or in its own name. Any act or
proceeding required or permitted to be done by our board of directors or any of
our officers may be done by the board or officers of the successor corporation.
If we sell all or substantially all of our assets, we shall be released from all
our liabilities and obligations under the indenture and under the debt
securities.
GOVERNING LAW
The indenture and the debt securities will be governed by the laws of the
State of New York.
DESCRIPTION OF STOCK
Our authorized capital stock is comprised of 100 million shares, consisting
of 75 million shares of common stock and 25 million shares of preferred stock.
COMMON STOCK
Our outstanding shares of common stock are traded on the New York Stock
Exchange under the symbol "CTS." The registrar is State Street Bank and Trust
Company and the transfer agent is CTS with State Street Bank and Trust Company
as co-transfer agent. The holders of our common stock are entitled to one vote
for each share of common stock held of record on all matters submitted to a vote
of our shareholders. Common shareholders are not entitled to preemptive rights
and have no rights to convert their common stock shares into other securities of
CTS or to have their shares redeemed by CTS.
Upon satisfaction of our obligations to preferred shareholders, the common
shareholders may receive dividends when declared by the board of directors. If
we liquidate, dissolve or wind-up our business, holders of our common stock will
share equally in the assets remaining after we pay all of our creditors and
satisfy all our obligations to preferred shareholders.
PREFERRED STOCK
The following description of the terms of our preferred stock sets forth the
general terms and provisions of our authorized preferred stock. If we offer
preferred stock, the specific designations and rights will be described in the
prospectus supplement which will be filed with the Securities and Exchange
Commission.
Our board of directors can, without approval of shareholders, issue one or
more series of preferred stock. The board can determine the number of shares of
each series and the rights, preferences and
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limitations of each series including dividend rights, voting rights, conversion
rights, redemption rights and any liquidation preferences and the terms and
conditions of issue. In some cases, the issuance of preferred stock could delay,
defer or prevent a change in control of CTS and make it harder to remove present
management, without further action by our shareholders. Under certain
circumstances, preferred stock could also decrease the amount of earnings and
assets available for distribution to holders of our common stock if we liquidate
or dissolve and could also restrict or limit dividend payments to holders of our
common stock.
Our board of directors has not issued any series of preferred stock to date.
The transfer agent, registrar and dividend disbursement agent for a series of
preferred stock will be named in a prospectus supplement.
INDIANA BUSINESS CORPORATION LAW AND THE ARTICLES OF
INCORPORATION AND BYLAWS
GENERAL
In general, our articles of incorporation and bylaws provide the following:
- That the board of directors fix the number of directors within a specified
range. At present we have six directors;
- The existing directors will fill any vacancy or newly created directorship
with any new director; and
- Only the chairman of the board, the board of directors or the president
can call a board of directors meetings.
We are an Indiana corporation and we are subject to the Indiana Business
Corporation Law. Under the laws of Indiana, the articles of incorporation can be
amended only with the approval of our board of directors and our shareholders.
Our bylaws provide that they cannot be amended without the approval of a
majority of our board of directors.
Provisions of the Indiana Business Combination Law, of our articles of
incorporation and bylaws and of the Rights Agreement dated as of August 28, 1998
between CTS and State Street Bank and Trust Company, as Rights Agent, may
discourage or make more difficult the acquisition of control of CTS through a
tender offer, open market purchase, proxy contest or otherwise. These provisions
are intended to discourage or may have the effect of discouraging certain types
of coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of CTS first to negotiate with us. Our
management believes that the foregoing measures, many of which are substantially
similar to the takeover-related measures in effect for many other publicly-held
companies, provide benefits by enhancing our ability to negotiate with a person
making an unfriendly or unsolicited proposal to take over or restructure CTS. We
believe that these benefits outweigh the disadvantages of discouraging such
proposals because, among other things, negotiation of such proposals could
result in an improvement of their terms.
Provisions of the Indiana Business Combination Law, in addition to
provisions of our articles of Incorporation and bylaws, address corporate
governance issues, including the rights of shareholders. Some of these
provisions could hinder management changes while others could have anti-takeover
effect. We have summarized the key provisions below. The descriptions are not
complete. You should read the actual provisions of our Articles and bylaws and
the Indiana Business Combination Law that relate to your individual investment
decision.
RIGHTS AGREEMENT
On August 28, 1998, our board of directors declared a dividend distribution
of one "Right" for each share of our common stock outstanding on September 10,
1998. Each Right entitles the registered holder
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to purchase from us one one-hundredth of a share of Series A Junior
Participating Preferred Stock, subject to adjustment. The description and terms
of the Rights are set forth in the Rights Agreement. A copy of the Rights
Agreement has been filed with the Securities and Exchange Commission as
Exhibit 1 to our Form 8-K filed on September 1, 1998. Capitalized terms have
been used in this section for your convenience and have the same meaning as
specified in the Rights Agreement.
The Rights are non-exercisable, non-transferable and non-separable from our
common stock until the "distribution date" which occurs on the earlier of:
- the public announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of our then outstanding
common stock (the date of such public announcement being the "Share
Acquisition Date") or
- ten business days following the commencement of a tender offer or exchange
offer by a person or group of associated or affiliated persons which would
result in beneficial ownership by such person or group of 15% or more of
our then outstanding common stock.
In general, at any time prior to their expiration on August 27, 2008 or
until the Share Acquisition Date, our board of directors may, in its discretion,
redeem the Rights in whole, but not in part, at a price of $.01 per Right. Under
certain circumstances, the decision to redeem requires the concurrence of a
majority of the directors that were members of our board of directors prior to
August 28, 1998 or were recommended for or approved as a director by a majority
of such directors and who is not an Acquiring Person or an associate, affiliate,
representative or nominee of an Acquiring Person.
Each share of Series A Junior Participating Preferred Stock, when issued,
will be non-redeemable and entitled to cumulative dividends and will rank junior
to any series of preferred stock senior to it. In connection with the
declaration of a dividend on our common stock, a preferential dividend will be
payable on the Series A Junior Participating Preferred Stock in an amount equal
to the greater of:
- $1.00 per share; and
- an amount equal to 100 times the dividend declared on the common stock.
Subject to customary anti-dilution provisions, in the event of liquidation,
the holders of the Series A Junior Participating Preferred Stock will be
entitled to a preferential liquidation payment equal to the greater of (a) 100
times the then applicable Purchase Price for the Rights and (b) an amount equal
to 100 times the liquidation payment made on the common stock, if any.
In the event, such an event is defined in the Rights Agreement as a "Flip-In
Event," that
- any person or group becomes an Acquiring Person,
- any Acquiring Person or its affiliate or associate, directly or
indirectly,
(1) merges into or combines with us and we are the continuing or
surviving corporation,
(2) merges into or combines with any of our subsidiaries,
(3) in one or more transactions, transfers cash, securities or other
property to us in exchange for, or the right to acquire, our capital
stock or that of any of our subsidiaries,
(4) engages in certain transactions with us which are not at arm's
length,
(5) receives any compensation from us other than as a director or
full-time employee, or
(6) receives any financial assistance or tax credits or advantages from
us or any of our subsidiaries, or
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(7) during such time as there is an Acquiring Person, there is a
reclassification of our securities or we consummate a
recapitalization or any other transaction,
which in each case has the effect of increasing by more than 1% the
proportionate share of any Acquiring Person or any affiliate or associate
thereof with respect to any class of our outstanding securities, each holder of
a Right will have the right to receive, upon exercise, that number of shares of
our common stock as equals the result obtained by
- multiplying the Purchase Price by the number of one-hundredths of a share
of Series A Junior Participating Preferred Stock for which a Right was
exercisable prior to the triggering event, and
- dividing that product by 50% of the market price per share of our common
stock on the date the triggering event occurs.
In the event such an event is defined in the Rights Agreement as a "Flip-Over
Event" that at any time after any person or group becomes an Acquiring Person,
- we consolidate with or merge with or into any person and we are not the
continuing or surviving corporation,
- any person consolidates with or merges with or into us and we are the
continuing or surviving corporation, but all or part of our common stock
is changed or exchanged for stock or securities of any other person or
cash or any other property, or
- we sell or transfer, in one or more transactions, 50% or more of our
assets or earning power to any person,
each holder of a Right will have the right to receive, upon exercise, that
number of shares of common stock as equals the result obtained by
- multiplying the Purchase Price by the number of one-hundredths of a share
of Series A Junior Participating Preferred Stock for which a Right was
exercisable prior to the Share Acquisition Date, and
- dividing that product by 50% of the market price per share of our common
stock on the date the triggering event occurs.
Each Right, when exercisable, currently entitles the registered holder to
purchase one one-hundredth of a share of Series A Junior Participating Preferred
Stock at a purchase price of $125.00 per share. Upon the occurrence of a
"Flip-In Event" or a "Flip-Over Event," all Rights held by any Acquiring Person
or any of its affiliates or associates, or any transferee of any of them, will
become null and void.
In addition, at any time after the Distribution Date but prior to the
acquisition by any person or group of affiliated or associated persons of 50% or
more of our then outstanding shares of common stock, we may exchange all or a
portion of the Rights other than any Rights that have become void at an exchange
ratio of one share of common stock per Right.
The Rights may have certain anti-takeover effects, including deterring
someone from acquiring control of CTS in a manner or on terms not approved by
our board of directors. The Rights would not interfere with any merger or other
business combination approved by our board of directors, because the Rights may
generally be redeemed by us as described above or the Rights Agreement may be
amended.
BYLAW PROVISIONS
Article XXI of our bylaws incorporates certain provisions of Chapter 23 of
the Indiana Business Combination Law, which provide that a corporation may adopt
rights, options or warrants relating to any transaction or proposed transaction
that would result in a change of control if consummated. Under the Indiana
Business Combination Law and our by-laws, our board of directors may, in such
circumstances,
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include provisions requiring the approval of the "continuing directors" of the
corporation for the redemption or exchange of the rights, options or warrants or
the amendment of the corresponding contracts, warrants or instruments. The
period requiring such approval may not exceed three years after the later of
- the time that the "continuing directors" no longer constitute the majority
of the directors of the corporation; or
- there is an "interested shareholder."
The Indiana Business Combination Law permits a corporation to define a
"continuing director" and an "interested shareholder." Under our bylaws, a
"continuing director" is defined as a director who:
- is not an "interested shareholder" or any affiliate, associate,
representative or nominee of an "interested shareholder" or any affiliate
thereof; and
- is either a member of our board of directors as of the date of issuance of
the rights, options or warrants or subsequently becomes a member of our
board of directors if his or her election or nomination was approved or
recommended by a majority of our board of directors (including a majority
of continuing directors then on our board and excluding any member whose
election resulted from any actual or threatened proxy or other election
contest).
BUSINESS COMBINATIONS
Chapter 43 of the Indiana Business Combination Law prohibits certain
"Business Combinations," including mergers, sale of assets, recapitalization and
reverse stock splits with interested shareholders. Interested shareholders are
holders of more than 10% of any class of a voting stock of a corporation.
Transactions between a corporation and an interested shareholder requires
approval in advance by a corporation's board of directors. In the absence of the
board's approval, the disinterested shareholders must approve the transaction or
the consideration received by disinterested shareholders in the transaction must
at least equal the highest price paid for shares by the interested shareholder
or the highest market value since the date on which the interested shareholders
acquired his or her shares. In addition, the consideration must be in cash or
the same form as the interested shareholder used to acquire the largest number
of his or her shares.
Chapter 42 of the Indiana Business Combination Law also contains certain
provisions regulating "control share acquisitions" which are transactions
causing the voting strength of any person acquiring beneficial ownership of
shares of a public corporation in Indiana to meet or exceed certain threshold
voting percentages (20%, 33% or 50%). Shares acquired in a control share
acquisition have no voting rights unless the voting rights are granted by a
majority vote of all outstanding shares other than those held by the acquiring
person or any officers or employee-directors of the corporation. As permitted
under the Indiana Business Combination Law our bylaws opt out of Section 42 for
all control share acquisitions after March 3, 1987. A majority of our board of
directors may amend the bylaws so that Section 42 would apply, if consistent
with the board's fiduciary responsibilities. The Indiana Business Combination
Law specifically authorizes directors, in considering whether an action is for
the best interest of a corporation, to consider the effects of any corporate
action on shareholders, employees, suppliers and customers of the corporation,
communities in which offices or other facilities of the corporation are located
and any other factors the directors consider pertinent. Under the Indiana
Business Combination Law, directors may be held liable for breaches of their
duties as directors only if their actions constitute willful misconduct or if
they recklessly disregard such duties.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, common stock,
preferred stock or any combination thereof. Warrants may be issued independently
or together with debt securities, preferred stock or common stock and may be
attached to or separate from such securities. In order to issue the warrants, we
may enter into warrant agreements with an agent, who will be named in the
applicable prospectus supplement. The warrant agent will act solely as our agent
for the warrants and will not assume any obligation or relationship of agency or
trust for or with you. This summary of certain provisions of the warrants is not
complete and is subject to, and qualified by reference to the provisions of the
warrant agreement to be filed with the Securities and Exchange Commission as
part of the offering of such warrants. Additional terms of the warrants and the
applicable warrant agreement will be described in a prospectus supplement
including, where applicable, the following:
- the title of such warrants;
- the total number of such warrants;
- the price or prices at which such warrants will be issued;
- the designation, number and terms of the debt securities, common stock,
preferred stock or any combination thereof purchasable upon exercise of
such warrants;
- the designation and terms of the other securities issued with the warrants
and the number of such warrants issued with each such security;
- the date, if any, on and after which such warrants and the related
underlying securities will be separately transferable;
- the price at which each underlying security purchasable upon exercise of
such warrants may be purchased;
- the date the warrants become exercisable, as well as the expiration date;
- the minimum amount of warrants which may be exercised at any one time;
- information with respect to book-entry procedures;
- a discussion of any applicable federal income tax considerations; and
- any other terms of such warrants, including terms, procedures and
limitations relating to the transferability, exchange and exercise of such
warrants.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may, over the next two years, sell any combination
of the securities described in this prospectus in one or more offerings up to a
total dollar amount of $500,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading WHERE YOU CAN FIND MORE INFORMATION.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our filings are
available to the public over the Internet at the Commission's web site at
http://www.sec.gov. You may also read and copy any document we file at the
Commission's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the Commission at 1-800-SEC-0330 for further
information on the public reference rooms. The New York Stock Exchange also
allows you to inspect and copy reports and information about CTS.
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the Commission will automatically update and supersede this information. We
incorporate by reference CTS' documents listed below and any future filings made
with the Commission under Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange of 1934 until we sell all of the securities.
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarter ended July 4, 1999; and
- Current Reports on Form 8-K, filed on March 11, 1999, as amended on Forms
8-K/A, filed on March 12, 1999, and May 12, 1999.
You may request a copy of these documents at no cost by writing or telephoning
us at the following address:
CTS Corporation
905 West Boulevard North
Elkhart, Indiana 46514
Attention: Investor Relations
(219) 293-7511
We will not include exhibits to such documents, unless you specifically request
them or such exhibits were specifically incorporated by reference.
You should rely only on the information incorporated by reference or
contained in this prospectus or any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in the prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of the
documents.
PLAN OF DISTRIBUTION
We may sell the offered securities through agents, underwriters or dealers,
or directly to one or more purchasers.
BY AGENTS
Offered securities may be sold through agents designated by us. The agents
agree to use their reasonable best efforts to solicit purchases for the period
of their appointment.
BY UNDERWRITERS
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to various conditions. The
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underwriters will be obligated to purchase all the securities of the series
offered if any of the securities are purchased. Any initial public offering
price and any discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
DIRECT SALES
Offered securities may also be sold directly by us. In this case, no
underwriters or agents would be involved.
GENERALLY
Underwriters, dealers and agents that participate in the distribution of the
offered securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters or agents will be
identified and their compensation described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their businesses.
All of the securities offered by this prospectus will be a new issue of
securities with no established trading market, other than the common stock,
which is listed on the New York Stock Exchange. Any common stock sold pursuant
to a prospectus supplement will be listed on the New York Stock Exchange,
subject to official notice of issuance. Underwriters that participate in the
distribution of the offered securities may make a market in the securities sold
to them by us, but they are not required to and may stop any market making
activities without prior notice. We can not guarantee a liquid market for any of
these securities.
LEGAL MATTERS
Unless we indicate otherwise in any accompanying prospectus supplement,
Jeannine M. Davis, Esq., our Executive Vice President Administration, General
Counsel and Secretary, or another of our attorneys, will deliver an opinion
about the validity of the securities offered by us.
EXPERTS
PricewaterhouseCoopers LLP, independent certified public accountants,
audited our financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement. These documents have
been incorporated by reference herein in reliance upon the authority of
PricewaterhouseCoopers LLP as experts in accounting and auditing in giving the
report.
The combined financial statements of the Component Products Division of
Motorola, Inc. as of December 31, 1997 and 1998, and for each of the years in
the three-year period ended December 31, 1998, have been incorporated by
reference herein in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
Our financial statements incorporated herein by reference to reports and
documents which are filed with the Securities and Exchange Commission after the
date of this prospectus but prior to the filing by us of post-effective
amendment indicating that all securities offered hereby have been sold or
deregistering all remaining unsold securities will be incorporated by reference
in reliance upon the authority of PricewaterhouseCoopers LLP, or any other
independent public accountants, as experts in accounting and auditing in giving
the report to the extent that such accounting firm has audited the relevant
financial statements and consented to the use of their report(s) with respect to
such financial statements.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
which will be described in an applicable prospectus supplement, are estimated as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $139,000
Legal fees and expenses..................................... 75,000
Accounting fees and expenses................................ 25,000
Printing and engraving expenses............................. 25,000
Trustee's fees and expenses................................. 20,000
Miscellaneous expenses(1)................................... 150,000
--------
Total................................................... $434,000
========
</TABLE>
- ------------------------
(1) Includes estimate of stock exchange listing fees, blue sky fees and
expenses, NASD filing fees, and rating agency fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following summary of the material provisions of CTS' bylaws relating to
indemnification of directors and officers, CTS' articles of incorporation, CTS'
indemnification agreements with officers and directors and the Indiana Business
Combination Law is not intended to be exclusive and is qualified in its entirety
by such bylaws, articles of incorporation, indemnification agreements and
statutes.
CTS' bylaws provide that CTS shall indemnify its officers and directors to
the fullest extent permitted by applicable law. Chapter 37 of the Indiana
Business Combination Law provides, in general, that each director and officer of
a corporation may be indemnified against liabilities (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with the defense or settlement of any threatened, pending
or completed legal proceedings in which he or she is involved by reason of the
fact that he or she is or was a director or officer, if he or she acted in good
faith and in a manner that he or she reasonably believed to be in or not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, if he or she had no reasonable cause to believe that his
or her conduct was unlawful. If the legal proceeding, however, is by or in the
right of the corporation, the director or officer may not be indemnified in
respect of any claim, issue or matter as to which he or she has been adjudged to
be liable for negligence or misconduct in the performance of his or her duty to
CTS unless a court determines otherwise.
The articles of incorporation provide that the personal liability of the
directors of CTS will be eliminated to the fullest extent permitted by
applicable law. The bylaws provide that no director of CTS will be personally
liable to the corporation or its shareholders for monetary damages for any
breach of his fiduciary duty as a director provided, however, that such
provision does not apply to any liability of a director (a) for breach of
fiduciary duty if such breach constitutes willful misconduct or recklessness or
(b) for the payment of distributions to shareholders in violation of
Section 23-1-28-3 of the Indiana Business Combination Law.
Pursuant to separate indemnification agreements with CTS, each officer and
director of CTS is indemnified from all liabilities arising out of the
activities reasonably taken in the performance of their respective duties as
officers and directors of CTS.
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CTS also maintains insurance for officers and directors against certain
liabilities, including liabilities under the Securities Act. The effect of this
insurance is to indemnify any officer or director of CTS against expenses,
including, without limitation, attorneys' fees, judgments, fines and amounts
paid in settlement, incurred by an officer or director upon a determination that
such person acted in good faith. The premiums for such insurance are paid by
CTS.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Underwriting Agreement (to be filed, as applicable to a
particular offering of securities, as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference thereto)
4.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 5 to CTS' Current Report on Form 8-K
filed with the Commission on September 1, 1998)
4.2 Bylaws (incorporated by reference to Exhibit 4 to CTS'
Current Report on Form 8-K filed with the Commission on
September 1, 1998)
4.3 Form of Senior Indenture
4.4 Supplemental Indenture (to be filed, as applicable to a
particular offering of debt securities, as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference thereto)
4.5 The form or forms of securities with respect to each
particular series of securities registered hereunder (to be
filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference thereto)
5.1 Opinion of Jeannine M. Davis, Esq., Executive Vice
President-Administration, General Counsel and Secretary of
CTS
12.1 Statement re: Computation of Ratios
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Jeannine M. Davis, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of the Trustee to act as
such under the Senior Indenture (to be filed, as applicable
to a particular offering of debt securities, as an exhibit
to a Current Report on Form 8-K and incorporated herein by
reference thereto)
</TABLE>
ITEM 17. UNDERTAKINGS
CTS hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement or the most recent
post-effective amendment thereof, which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered, if the total dollar value of
securities offered would not exceed that which was registered, and any
deviation from the low or high end of the estimated maximum offering
range
II-2
<PAGE>
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a) and
(b) above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by CTS pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time will be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of CTS' Annual Report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this registration
statement will be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
will be deemed to be the initial bona fide offering thereof.
(5) That, (a) for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by CTS pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective and (b) for
the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
CTS hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act of 1939 in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act
of 1939.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of CTS
pursuant to the foregoing provisions, or otherwise, CTS has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by CTS of expenses incurred or paid by a
director, officer, or controlling person of CTS in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, CTS will,
unless in the opinion of counsel for CTS the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Berne, Indiana on November 3, 1999.
<TABLE>
<S> <C> <C>
CTS CORPORATION
By: /s/ JOSEPH P. WALKER
-----------------------------------------
Joseph P. Walker
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman, President and Chief Executive
------------------------------------------- Officer (principal executive officer) and
Joseph P. Walker Director
* Vice President--Finance and Chief Financial
------------------------------------------- Officer (principal financial officer and
Timothy J. Cunningham principal accounting officer)
*
------------------------------------------- Director
Lawrence J. Ciancia
*
------------------------------------------- Director
Thomas G. Cody
*
------------------------------------------- Director
Gerald H. Frieling, Jr.
*
------------------------------------------- Director
Robert A. Profusek
*
------------------------------------------- Director
Randall J. Weisenburger
</TABLE>
* The undersigned, by signing her name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed by the
above-named persons.
<TABLE>
<S> <C> <C>
/s/ JEANNINE M. DAVIS
-----------------------------------------
Jeannine M. Davis,
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --------------------- ------------------------------------------------------------
<C> <S>
1.1 Underwriting Agreement (to be filed, as applicable to a
particular offering of Securities, as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference thereto)
4.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 5 to CTS' Current Report on Form 8-K
filed with the Commission on September 1, 1998)
4.2 Bylaws (incorporated by reference to Exhibit 5 to CTS'
Current Report on Form 8-K filed with the Commission on
September 1, 1998)
4.3 Form of Senior Indenture
4.4 Supplemental indenture (to be filed, as applicable to a
particular offering of debt securities, as an exhibit to a
Current Report on Form 8-K and incorporated herein by
reference thereto)
4.5 The form or forms of Securities with respect to each
particular series of Securities registered hereunder (to be
filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference thereto)
5.1 Opinion of Jeannine M. Davis, Esq., Executive Vice
President-Administration, General Counsel and Secretary of
CTS
12.1 Statement re: Computation of Ratios
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of KPMG LLP
23.3 Consent of Jeannine M. Davis, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of the trustee to act as
trustee under the Senior Indenture (to be filed, as
applicable to a particular offering of debt securities, as
an exhibit to a Current Report on Form 8-K and incorporated
herein by reference thereto)
</TABLE>
<PAGE>
EXHIBIT 4.3
================================================================================
CTS Corporation
and
--------------------,
TRUSTEE
Senior Indenture
DATED AS OF
SENIOR SECURITIES
================================================================================
<PAGE>
CTS CORPORATION
SENIOR SECURITIES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections 310 - 318(a),
inclusive, of the Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTIONS OF INDENTURE
<S> <C>
ss.310(a)(1) ............................... 9.08
(a)(2) ............................... 9.08
(a)(3) ............................... Inapplicable
(a)(4) ............................... Inapplicable
(a)(5) ............................... 9.08
(b) ............................... 9.07 and 9.09
(c) ............................... Inapplicable
ss. 311(a) ............................... 9.12
(b) ............................... 9.12
(c) ............................... Inapplicable
ss. 312(a) ............................... 7.01 and 7.02
(b) ............................... 7.02
(c) ............................... 7.02
ss. 313(a) ............................... 7.03
(b) ............................... 7.03
(c) ............................... 7.03
(d) ............................... 7.03
ss. 314(a) ............................... 7.04
(a)(4) ............................... 1.01 and 6.08
(b) ............................... Inapplicable
(c)(1) ............................... 13.05
(c)(2) ............................... 13.05
(c)(3) ............................... Inapplicable
(d) ............................... Inapplicable
(e) ............................... 13.05
(f) ............................... Inapplicable
ss. 315(a) ............................... 9.01
(b) ............................... 8.08
(c) ............................... 9.01
(d) ............................... 9.01
(e) ............................... 8.07
ss. 316(a) ............................... 1.01
(a)(1)(A) ............................... 8.01 and 8.06
(a)(1)(B) ............................... 8.01
(a)(2) ............................... Inapplicable
(b) ............................... 8.09
(c) ............................... 13.11
ss.317(a)(1) ............................... 8.02
(a)(2) ............................... 8.02
(b) ............................... 6.03
ss. 318(a) ............................... 13.08
</TABLE>
- ----------
* The Cross Reference Sheet is not part of the Indenture.
<PAGE>
Table of Contents*
<TABLE>
<CAPTION>
PAGE
<S> <C>
Recitals .........................................................................................................1
Form of Face of Security.................................................................................1
Form of Reverse of Security..............................................................................3
Form of Trustee's Certificate Of Authentication for Securities...........................................7
Form of Legend for Global Securities.....................................................................7
Article I. Definitions...........................................................................................8
Section 1.01. Certain Terms Defined................................................................8
Act .....................................................................................8
Affiliate.....................................................................................8
Authenticating Agent..........................................................................9
Board of Directors............................................................................9
Board Resolution..............................................................................9
Business Day..................................................................................9
Capital Lease.................................................................................9
Capital Lease Obligation......................................................................9
Commission....................................................................................9
Common Stock.................................................................................10
Company ....................................................................................10
Company Request or Company Order.............................................................10
Corporate Trust Office.......................................................................10
Covenant Defeasance..........................................................................10
Default ....................................................................................10
Defaulted Interest...........................................................................10
Defeasance...................................................................................10
Defeasible Series............................................................................10
Depositary...................................................................................10
Event of Default.............................................................................11
Exchange Act.................................................................................11
GAAP ....................................................................................11
Global Security..............................................................................11
Holder ....................................................................................11
Indebtedness.................................................................................11
Indenture....................................................................................12
Interest ....................................................................................12
Interest Payment Date........................................................................12
Material Adverse Effect......................................................................13
Maturity ....................................................................................13
</TABLE>
- ----------
*The Table of Contents is not part of the Indenture.
<PAGE>
<TABLE>
<S> <C>
Notice of Default............................................................................13
Officer's Certificate........................................................................13
Opinion of Counsel...........................................................................13
Original Issue Discount Security.............................................................13
Outstanding..................................................................................13
Paying Agent.................................................................................14
Person ....................................................................................14
Place of Payment.............................................................................14
Predecessor Security.........................................................................14
Redemption Date..............................................................................15
Redemption Price.............................................................................15
Regular Record Date..........................................................................15
Responsible Officer..........................................................................15
Securities...................................................................................15
Security Register and Security Registrar.....................................................15
Special Record Date..........................................................................16
Stated Maturity..............................................................................16
Subsidiary...................................................................................16
Trust Indenture Act..........................................................................16
Trustee ....................................................................................16
U.S. Government Obligation...................................................................16
Vice President...............................................................................17
Article II. The Securities......................................................................................17
Section 2.01. Designation and Amount of Securities................................................17
Section 2.02. Form of Securities and Trustee's Certificate of Authentication......................19
Section 2.03. Date and Denominations..............................................................19
Section 2.04. Execution, Authentication and Delivery of Securities................................19
Section 2.05. Registration of Transfer and Exchange...............................................21
Section 2.06. Temporary Securities................................................................22
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities...................................22
Section 2.08. Cancellation of Surrendered Securities..............................................23
Section 2.09. Payment of Interest; Interest Rights Preserved......................................24
Section 2.10. Persons Deemed Owners...............................................................25
Section 2.11. Computation of Interest.............................................................25
Section 2.12. CUSIP Numbers.......................................................................25
Article III. Redemption of Securities...........................................................................25
Section 3.01. Applicability of Article............................................................25
Section 3.02. Election to Redeem; Notice to Trustee...............................................26
Section 3.03. Deposit of Redemption Price.........................................................27
Section 3.04. Securities Payable on Redemption Date...............................................27
Section 3.05. Securities Redeemed in Part.........................................................27
</TABLE>
- ----------
*The Table of Contents is not part of the Indenture.
(ii)
<PAGE>
<TABLE>
<S> <C>
Article IV. Sinking Funds.......................................................................................27
Section 4.01. Applicability of Article............................................................27
Section 4.02. Satisfaction of Sinking Fund Payments With Securities...............................28
Section 4.03. Redemption of Securities for Sinking Fund...........................................28
Article V. Defeasance and Covenant Defeasance...................................................................28
Section 5.01. Company's Option to Effect Defeasance or Covenant Defeasance........................28
Section 5.02. Defeasance and Discharge............................................................29
Section 5.03. Covenant Defeasance.................................................................29
Section 5.04. Conditions to Defeasance or Covenant Defeasance.....................................30
Section 5.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions......................................................31
Section 5.06. Reinstatement.......................................................................32
Article VI. Particular Covenants of the Company.................................................................32
Section 6.01. Payment of Principal, Premium and Interest on Securities............................32
Section 6.02. Maintenance of Office or Agency.....................................................32
Section 6.03. Money for Securities Payments to be Held in Trust...................................33
Section 6.04. Payment of Taxes and Other Claims...................................................34
Section 6.05. Maintenance of Properties...........................................................34
Section 6.06. Existence...........................................................................34
Section 6.07. Compliance with Laws................................................................34
Section 6.08. Statement by Officers as to Default.................................................35
Section 6.09. Waiver of Certain Covenants.........................................................35
Article VII. Securities Holders' Lists And Reports By The Company And The Trustee...............................35
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders...........................35
Section 7.02. Preservation of Information; Communication to Holders...............................35
Section 7.03. Reports by Trustee..................................................................36
Section 7.04. Reports by Company..................................................................36
Article VIII. Default...........................................................................................36
Section 8.01. Event of Default....................................................................36
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal; Suits for
Enforcement by Trustee..............................................................39
Section 8.03. Application of Money Collected by Trustee...........................................40
Section 8.04. Limitation on Suits by Holders of Securities........................................40
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise of
Rights not a Waiver of Event of Default.............................................41
Section 8.06. Rights of Holders of Majority in Principal Amount of Outstanding
Securities to Direct Trustee........................................................41
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee....................................................41
</TABLE>
- ----------
*The Table of Contents is not part of the Indenture.
(iii)
<PAGE>
<TABLE>
<S> <C>
Section 8.08. Notice of Defaults..................................................................42
Section 8.09. Unconditional Right of Holders to Receive Principal, Premium, and
Interest............................................................................42
Section 8.10. Restoration of Rights and Remedies..................................................42
Section 8.11. Trustee May File Proofs of Claims...................................................42
Article IX. Concerning the Trustee..............................................................................43
Section 9.01. Certain Duties and Responsibilities.................................................43
Section 9.02. Certain Rights of Trustee...........................................................43
Section 9.03. Not Responsible for Recitals or Issuance of Securities..............................44
Section 9.04. May Hold Securities.................................................................44
Section 9.05. Money Held in Trust.................................................................44
Section 9.06. Compensation and Reimbursement......................................................44
Section 9.07. Disqualification; Conflicting Interests.............................................44
Section 9.08. Corporate Trustee Required Eligibility..............................................45
Section 9.09. Resignation and Removal; Appointment of Successor...................................45
Section 9.10. Acceptance of Appointment by Successor..............................................46
Section 9.11. Merger, Conversion, Consolidation, or Succession to Business........................47
Section 9.12. Preferential Collection of Claims Against Company...................................47
Section 9.13. Appointment of Authenticating Agent.................................................48
Article X. Supplemental Indentures And Certain Actions..........................................................49
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered Into
Without Consent of Holders..........................................................49
Section 10.02. Modification of Indenture With Consent of Holders of at Least a
Majority in Principal Amount of Outstanding Securities..............................50
Section 10.03. Execution of Supplemental Indentures................................................51
Section 10.04. Effect of Supplemental Indentures...................................................51
Section 10.05. Conformity with Trust Indenture Act.................................................52
Section 10.06. Reference in Securities to Supplemental Indentures..................................52
Article XI. Consolidation, Merger, Sale, or Transfer............................................................52
Section 11.01. Consolidations and Mergers of Company and Sales Permitted Only on
Certain Terms.......................................................................52
Article XII. Satisfaction and Discharge of Indenture............................................................53
Section 12.01. Satisfaction and Discharge of Indenture.............................................53
Section 12.02. Application of Trust Money..........................................................53
Article XIII. Miscellaneous Provisions..........................................................................54
Section 13.01. Successors and Assigns of Company Bound by Indenture................................54
Section 13.02. Service of Required Notice to Trustee and Company...................................54
Section 13.03. Service of Required Notice to Holders; Waiver.......................................54
</TABLE>
- ----------
*The Table of Contents is not part of the Indenture.
(iv)
<PAGE>
<TABLE>
<S> <C>
Section 13.04. Indenture and Securities to be Construed in Accordance with the Laws
of the State of New York............................................................54
Section 13.05. Compliance Certificates and Opinions................................................55
Section 13.06. Form of Documents Delivered to Trustee..............................................55
Section 13.07. Payments Due on Non-Business Days...................................................55
Section 13.08. Provisions Required by Trust Indenture Act to Control...............................55
Section 13.09. Invalidity of Particular Provisions.................................................55
Section 13.10. Indenture May be Executed In Counterparts...........................................56
Section 13.11. Acts of Holders; Record Dates.......................................................56
Section 13.12. Effect of Headings and Table of Contents............................................58
Section 13.13. Benefits of Indenture...............................................................58
</TABLE>
- ----------
*The Table of Contents is not part of the Indenture.
(v)
<PAGE>
INDENTURE, dated as of , between CTS Corporation, a corporation duly
organized and existing under the laws of the State of Indiana (the "Company"),
and ________________, a ______________ duly organized and existing under the
laws of _____________, as Trustee (the "Trustee").
RECITALS
A. The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, and other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
B. The Securities of each series will be in substantially the form set
forth below, or in such other form as may be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions, and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers, or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
CTS CORPORATION
--------------------------------
No. _______________________ $_________
CTS Corporation, a corporation duly organized and existing under the
laws of Indiana (hereinafter called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of $_____________ on _________________________ [IF THE SECURITY IS
TO BEAR INTEREST PRIOR TO MATURITY, INSERT: ", and to pay interest thereon from
_________________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on _______________ and ____________
in each year, commencing on _____________ , at the rate of % per annum, until
the principal hereof is paid or made available for payment [IF APPLICABLE,
INSERT: ", and at the rate of % per annum on any overdue principal and premium
and on any overdue installment of interest"]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which will be the ________________
or ____________ (whether or not a Business Day), as the case may be, next
preceding such
<PAGE>
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof will be given to Holders of Securities of this series
not less than 10 calendar days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture"].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT:
"The principal of this Security will not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption, or at Stated
Maturity, and in such case the overdue principal of this Security will bear
interest at the rate of % per annum which will accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal will be payable on demand. Any
such interest on any overdue principal that is not so paid on demand will bear
interest at the rate of % per annum which will accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest will also be payable on demand."]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT: "any such"] interest on this Security will be made at the office or
agency of the Company maintained for the purpose in ____________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [IF APPLICABLE, INSERT:
"; PROVIDED, HOWEVER, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Security Register"].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE
REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any
purpose until the certificate of authentication herein has been signed manually
by the Trustee under the Indenture referred to on the reverse side hereof.
2
<PAGE>
In Witness Whereof, this instrument has been duly executed in
accordance with the Indenture.
CTS Corporation
Date Issued: ____________ By: _______________________
Attest:
By: ______________
[Form of Reverse of Security]
CTS CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of _______________ (herein called the
"Indenture"), between the Company and _______________, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Company, the Trustee, and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [IF APPLICABLE, INSERT: ", limited in aggregate principal amount
to $ "].
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail,[IF APPLICABLE,
INSERT: "(a) on in each year commencing with the year and ending with the year
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (b)"] at any time [IF APPLICABLE,
INSERT: "on or after , "], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [IF APPLICABLE, INSERT: "on or before , %, and if
redeemed"] during the 12-month period beginning of the years indicated,
3
<PAGE>
Redemption Redemption
YEAR PRICE YEAR PRICE
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT: "whether
through operation of the sinking fund or otherwise)"] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture."]
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail,[IF APPLICABLE,
INSERT: "(a) on _________ in each year commencing with the year _____ and ending
with the year ______ through operation of the sinking fund for this series at
the following Redemption Prices (expressed as percentages of the principal
amount) applicable to redemption through operation of the sinking fund and (b)"]
at any time [IF APPLICABLE, INSERT: "on or after ______, ___"], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount) applicable to redemption
otherwise than through operation of the sinking fund: If redeemed [IF
APPLICABLE, INSERT: "on or before _________, ___%, and if redeemed"] during the
12- month period beginning _____ of the years indicated,
Redemption Price For Redemption Price For
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- -------------------- ----------------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture."]
[IF APPLICABLE, INSERT: "Notwithstanding the foregoing, the Company may
not, prior to _____________, redeem any Securities of this series as
contemplated by [IF APPLICABLE, INSERT: "Clause (b) of"] the preceding paragraph
as a part of, or in anticipation of, any refunding
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operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than
______________% per annum."]
[IF APPLICABLE, INSERT: "The sinking fund for this series provides for
the redemption on ____________________ in each year beginning with the year
________________ and ending with the year _______________ of [IF APPLICABLE,
INSERT: "not less than $___________ ("mandatory sinking fund") and not more
than"] $________________ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [IF APPLICABLE, INSERT: "mandatory"] sinking fund payments may be
credited against subsequent [IF APPLICABLE, INSERT: "mandatory"] sinking fund
payments otherwise required to be made [IF APPLICABLE, INSERT: "in the inverse
order in which they become due"]."]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT: "In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof."]
[IF APPLICABLE, INSERT: "The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness evidenced by this Security
or (b) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture."]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT:
"If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture."]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT: "If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount will be equal to [INSERT FORMULA FOR DETERMINING THE
AMOUNT]. Upon payment (a) of the amount of principal so declared due and payable
and (b) of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series will terminate."]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security will be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in
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<PAGE>
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security will not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The
foregoing will apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place, and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security shall be overdue, and neither the
Company, the Trustee, nor any such agent will be affected by notice to the
contrary.
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All terms used in this Security that are defined in the Indenture will
have the respective meanings assigned to them in the Indenture.
C. The Trustee's certificate of authentication will be in substantially
the following form:
[Form of Trustee's Certificate Of Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[Name of Trustee],
as Trustee
By:__________________________
Authorized Officer
D. Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the following form:
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, this Security will be a Global Security subject to the
foregoing, except in such limited circumstances.
E. All acts and things necessary to make the Securities, when the
Securities have been executed by the Company and authenticated by the Trustee
and delivered as provided in this Indenture, the valid, binding, and legal
obligations of the Company and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed, and the
execution and delivery by the Company of this Indenture and the issue hereunder
of the Securities have in all respects been duly authorized; and the Company, in
the exercise of legal right and power in it vested, is executing and delivering
this Indenture and proposes to make, execute, issue, and deliver the Securities.
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<PAGE>
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the Securities
are authenticated, issued, and delivered, and in consideration of the premises
and of the purchase and acceptance of the Securities by the Holders thereof, it
is mutually agreed, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities or of a series thereof, as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.01. CERTAIN TERMS DEFINED.
(a) The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context of this Indenture otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto have
the respective meanings specified in this Section 1.01. All other terms used in
this Indenture that are defined in the Trust Indenture Act, either directly or
by reference therein (except as herein otherwise expressly provided or unless
the context of this Indenture otherwise requires), have the respective meanings
assigned to such terms in the Trust Indenture Act as in force at the date of
this Indenture as originally executed.
ACT:
The term "Act", when used with respect to any Holder, has the meaning
set forth in Section 13.11.
AFFILIATE:
The term "Affiliate" means, with respect to a particular Person, any
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition, control
of a Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 9.13 to act on behalf of the Trustee to authenticate
Securities of one or more series.
BOARD OF DIRECTORS:
The term "Board of Directors" means the Board of Directors of the
Company or a duly authorized committee of such Board.
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<PAGE>
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday, and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or required by law or executive order to close.
CAPITAL LEASE:
The term "Capital Lease" means, with respect to any Person, any lease
of property (whether real, personal, or mixed) by such Person or its
Subsidiaries as lessee that would be capitalized on a balance sheet of such
Person or its Subsidiaries prepared in conformity with GAAP, other than, in the
case of such Person or its Subsidiaries, any such lease under which such Person
or any of its Subsidiaries is the lessor.
CAPITAL LEASE OBLIGATION:
The term "Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all obligations of such Person and its Subsidiaries
under Capital Leases, as determined on a consolidated basis in conformity with
GAAP.
COMMISSION:
The term "Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
COMMON STOCK:
The term "Common Stock" means the common stock of the Company.
COMPANY:
The term "Company" means CTS Corporation, an Indiana corporation, until
a successor Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Company" will mean such successor Person.
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<PAGE>
COMPANY REQUEST OR COMPANY ORDER:
The term "Company Request" or "Company Order" means a written request
or order signed in the name of the Company by a Responsible Officer of the
Company.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business is principally
administered, which on the date hereof is [150 Royal Street, Mail Stop 45-02-15,
Canton, Massachusetts 02021].
COVENANT DEFEASANCE:
The term "Covenant Defeasance" has the meaning set forth in Section
5.03.
DEFAULT:
The term "Default" means any event which, with notice or passage of
time or both, would constitute an Event of Default.
DEFAULTED INTEREST:
The term "Defaulted Interest" has the meaning set forth in Section
2.09.
DEFEASANCE:
The term "Defeasance" has the meaning set forth in Section 5.02.
DEFEASIBLE SERIES:
The term "Defeasible Series" has the meaning set forth in Section 5.01.
DEPOSITARY:
The term "Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 2.01.
EVENT OF DEFAULT:
The term "Event of Default" has the meaning set forth in Section
8.01(a).
EXCHANGE ACT:
The term "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, as the same may be in effect from time to time.
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<PAGE>
GAAP:
The term "GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and The American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by any
successor entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
GLOBAL SECURITY:
The term "Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
HOLDER:
The term "Holder" means a person in whose name a particular Security is
registered in the Security Register.
INDEBTEDNESS:
The term "Indebtedness" means, as applied to any Person, without
duplication: (a) all obligations of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property or
services (other than property and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business); (c)
all obligations of such Person evidenced by notes, bonds, debentures,
mandatorily redeemable preferred stock, or other similar instruments (other than
performance, surety, and appeals bonds arising in the ordinary course of
business); (d) all payment obligations created or arising under any conditional
sale, deferred price, or other title retention agreement with respect to
property acquired by such Person (unless the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property); (e) any Capital Lease Obligation of such
Person; (f) all reimbursement, payment, or similar obligations, contingent or
otherwise, of such Person under acceptance, letter of credit, or similar
facilities (other than letters of credit in support of trade obligations or
incurred in connection with public liability insurance, workers' compensation,
unemployment insurance, old-age pensions, and other social security benefits
other than in respect of employee benefit plans subject to ERISA); (g) all
obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses
(a) through (f) above; and (h) all obligations referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any mortgage or
security interest in property (including without limitation accounts, contract
rights, and general intangibles) owned by such Person and as to which such
Person has not assumed or become liable for the payment of such obligations
other than to the extent of the property subject to such mortgage or security
interest; PROVIDED, HOWEVER, that Indebtedness of the type referred to in
clauses (g) and (h) above shall be included within the definition of
"Indebtedness" only to the extent of the least of: (i) the amount of the
underlying Indebtedness referred to in the applicable
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clause (a) through (f) above; (ii) in the case of clause (g), the limit on
recoveries, if any, from such Person under obligations of the type referred to
in clause (g) above; and (iii) in the case of clause (h), the aggregate value
(as determined in good faith by the Board of Directors) of the security for such
Indebtedness.
INDENTURE:
The term "Indenture" means this Indenture, as this Indenture may be
amended, supplemented, or otherwise modified from time to time, including, for
all purposes of this Indenture and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" will also include the terms of particular series of Securities
established as contemplated by Section 2.01.
INTEREST:
The term "interest," (i) when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest which accrues from and after and is payable after Maturity and (ii)
when used with respect to any Security, means the amount of all interest
accruing on such Security, including any default interest and any interest
accruing after any Event of Default that would have accrued but for the
occurrence of such Event of Default, whether or not a claim for such interest
would be otherwise allowable under applicable law.
INTEREST PAYMENT DATE:
The term "Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
MATERIAL ADVERSE EFFECT:
The term "Material Adverse Effect" means a material adverse effect on
the business, assets, financial condition or results of operations of the
Company (taken together with its Subsidiaries as a whole).
MATURITY:
The term "Maturity," when used with respect to any Security, means the
date on which the principal of that Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise.
NOTICE OF DEFAULT:
The term "Notice of Default" means a written notice of the kind set
forth in Section 8.01(a)(iv).
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OFFICER'S CERTIFICATE:
The term "Officer's Certificate" means a certificate executed on behalf
of the Company by a Responsible Officer, and delivered to the Trustee.
OPINION OF COUNSEL:
The term "Opinion of Counsel" means an opinion in writing signed by
legal counsel, who, subject to any express provisions hereof, may be an employee
of or counsel for the Company or any Subsidiary, reasonably acceptable to the
Trustee.
ORIGINAL ISSUE DISCOUNT SECURITY:
The term "Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 8.01(b).
OUTSTANDING:
The term "Outstanding" means, when used with reference to Securities as
of a particular time, all Securities theretofore issued by the Company and
authenticated and delivered by the Trustee under this Indenture, except (a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation, (b) Securities for the payment or redemption of which money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company is acting as its own Paying Agent) for the Holders
of such Securities; PROVIDED that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made, and (c) Securities in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent, or waiver hereunder, (i) the principal amount of an Original
Issue Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof to such date pursuant to
Section 8.01(b), (ii) the principal amount of a Security denominated in one or
more foreign currencies or currency units will be the U.S. dollar equivalent,
determined in the manner contemplated by Section 2.01 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in
clause (i) above) of such Security, and (iii) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor will be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee will be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or waiver, only
Securities which the Trustee knows to be so owned will be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
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Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
PAYING AGENT:
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
PERSON:
The term "Person" means any individual, partnership, corporation, joint
stock company, business trust, trust, unincorporated association, joint venture,
or other entity, or government or political subdivision or agency thereof.
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 2.01.
PREDECESSOR SECURITY:
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
REDEMPTION DATE:
The term "Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
REDEMPTION PRICE:
The term "Redemption Price," when used with respect to any Security to
be redeemed, means the price (including premium, if any) at which it is to be
redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 2.01.
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RESPONSIBLE OFFICER:
The term "Responsible Officer," when used (a) with respect to the
Company, means [the Chairman, the Chief Executive Officer, the President, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Secretary, or an Assistant Secretary] of the Company and (b) with respect to
the Trustee, means the Chairman or any Vice Chairman of the Board of Directors
(if an officer), the Chairman or any Vice Chairman of the Executive Committee of
the Board of Directors (if an officer), the Chief Executive Officer, the
President, any Vice President, any Second or Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time are such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
SECURITIES:
The term "Securities" has the meaning set forth in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
SECURITY REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.09.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Security, any
installment of interest thereon, or any other amount payable under this
Indenture or the Securities, means the date specified in this Indenture or such
Security as the regularly scheduled date on which the principal of such
Security, such installment of interest, or such other amount, is due and
payable.
SUBSIDIARY:
The term "Subsidiary" means, as applied with respect to any Person, any
corporation, partnership, or other business entity of which, in the case of a
corporation, more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership or other
legal entity, more than 50% of the ordinary equity capital interests, is at the
time directly or indirectly owned or
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controlled by such Person, by such Person and one or more of its other
Subsidiaries, or by one or more of such Person's other Subsidiaries.
TRUST INDENTURE ACT:
The term "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed;
PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
TRUSTEE:
The term "Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" will mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series will mean each Trustee with respect to
Securities of that series.
U.S. GOVERNMENT OBLIGATION:
The term "U.S. Government Obligation" means (a) any security that is
(i) a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
VICE PRESIDENT:
The term "Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
(b) The words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture. The words "herein", "hereof," and "hereunder"
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section, or
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other subdivision. Certain terms used principally in Articles V, VI, and IX are
defined in those Articles. Terms in the singular include the plural and terms in
the plural include the singular.
ARTICLE II. THE SECURITIES.
SECTION 2.01. DESIGNATION AND AMOUNT OF SECURITIES.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There will be
established in or pursuant to a Board Resolution and, subject to Section 2.04,
set forth or determined in the manner provided in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series: (i) the title of the Securities of the series
(which will distinguish the Securities of the series from Securities of any
other series); (ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be payable; (vii) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and
any premium and interest on any Securities of the series will be payable if
other than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of "Outstanding" in Section 1.01; (xi) if
the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based
upon a formula, or in some other manner, the manner in which such amounts will
be determined; (xii) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made will be payable, and the periods within which and the terms and
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conditions upon which such election is to be made; (xiii) if other than the
principal amount thereof, the portion of the principal amount of Securities of
the series which will be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 8.01(b); (xiv) if applicable, that the
Securities of the series will be subject to either or both of Defeasance or
Covenant Defeasance as provided in Article V, provided that no series of
Securities that is convertible into Common Stock pursuant to Section
2.01(b)(xvi) or convertible into or exchangeable for any other securities
pursuant to Section 2.01(b)(xvii) will be subject to Defeasance pursuant to
Section 5.02; (xv) if and as applicable, that the Securities of the series will
be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security or
Global Securities and any circumstances other than those set forth in Section
2.05 in which any such Global Security may be transferred to, and registered and
exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such
transfer may be registered; (xvi) the terms and conditions, if any, pursuant to
which the Securities are convertible into Common Stock; (xvii) the terms and
conditions, if any, pursuant to which the Securities are convertible into or
exchangeable for any other securities, including (without limitation) securities
of Persons other than the Company; and (xviii) any other terms of, or
provisions, covenants, rights or other matters applicable to, the series (which
terms, provisions, covenants, rights or other matters will not be inconsistent
with the provisions of this Indenture, except as permitted by Section 10.01(e)).
(c) All Securities of any one series will be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to below and (subject to Section 2.04) set
forth or determined in the manner provided in the Officer's Certificate referred
to above or in any such indenture supplemental hereto.
(d) If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
will be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee concurrently with or prior to the delivery of the
Officer's Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
(a) The Securities of each series will be in substantially the form set
forth in or otherwise contemplated by the recitals to this Indenture, with
appropriate variations to reflect the specific terms of such series. If the form
of Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action will be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee concurrently with or prior to the delivery of the Company Order
contemplated by Section 2.04 for the authentication and delivery of such
Securities.
(b) The definitive Securities will be printed, lithographed, or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the form set forth in the recitals to this Indenture.
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(d) Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the form set forth in the recitals to this
Indenture.
SECTION 2.03. DATE AND DENOMINATIONS.
Each Security will be dated the date of its authentication. The
Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified as contemplated by Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
SECTION 2.04. EXECUTION, AUTHENTICATION AND DELIVERY OF SECURITIES.
(a) The Securities will be executed on behalf of the Company by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
or any Vice President of the Company and attested by the Chief Financial
Officer, Treasurer, the Secretary, any Assistant Treasurer, or any Assistant
Secretary of the Company under its corporate seal, if required by law to be so
sealed. The signature of any of these officers on the Securities may be manual
or facsimile. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted, or otherwise reproduced on the
Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.08, for all
purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits
of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order will authenticate and deliver such Securities.
If the form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and
2.02, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee will be entitled to receive, and (subject to Section 9.01) will be fully
protected in relying upon, an Opinion of Counsel stating (i) if the form of such
Securities has been established by or pursuant to a Board Resolution as
permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture, (ii)
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if the terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 2.01, that such terms have been established
in conformity with the provisions of this Indenture, and (iii) that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws relating to or affecting creditors' rights and by general principles of
equity.
(e) Notwithstanding the provisions of Sections 2.01 and
2.04(d), if all Securities of a series are not to be originally issued at one
time, it will not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company will cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of Payment for that
series, the Company will execute, and the Trustee will authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
(c) At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute, and the
Trustee will authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration
of transfer or exchange will (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument or instruments of
transfer, in form reasonably satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing. No service charge will be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer.
The Company will not be required (i) to issue, register the transfer of,
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or exchange Securities of any series during a period beginning at the opening of
business 15 calendar days before the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 3.02(c) and
ending at the close of business on the day of such mailing or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Securities to be redeemed in part, the
portion thereof not being redeemed.
(e) All Securities issued upon any registration of transfer
or exchange of Securities will be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture,
no Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such Global Security or any nominee thereof, and no such transfer may be
registered, unless (i) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (ii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable, and exchangeable, and such
transfers shall be registrable, (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities evidenced by such
Global Security, or (iv) there shall exist such other circumstances, if any, as
have been specified for this purpose as contemplated by Section 2.01.
Notwithstanding any other provision in this Indenture, a Global Security to
which the restriction set forth in the preceding sentence shall have ceased to
apply may be transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such Person or Persons as
the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, a Global Security to which the restriction set forth in the first
sentence of this Section 2.05(f) shall apply, whether pursuant to this Section
2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise, will be authenticated and
delivered in the form of, and will be, a Global Security.
SECTION 2.06. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute and register and upon Company Order the Trustee
will authenticate and deliver temporary Securities (printed, lithographed, or
typewritten), of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities; PROVIDED, HOWEVER, that the Company will use reasonable efforts to
have definitive Securities of that series available at the times of any issuance
of Securities under this Indenture. Every temporary Security will be executed
and registered by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. The Company will execute and register and furnish
definitive Securities of such series as soon as practicable and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor
at the office or agency of the Company in the Place of Payment for that series,
and the Trustee will authenticate and deliver in exchange for such
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temporary Securities of such series one or more definitive Securities of the
same series, of any authorized denominations, and of a like aggregate principal
amount and tenor. Such exchange will be made by the Company at its own expense
and without any charge to the Holder therefor. Until so exchanged, the temporary
Securities of any series will be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
SECTION 2.07. MUTILATED, DESTROYED, LOST, AND STOLEN SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee,
the Company will execute and the Trustee will authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss, or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company will execute and the Trustee will
authenticate and deliver, in lieu of any such destroyed, lost, or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security of any series issued pursuant to this
Section 2.07 in exchange for any mutilated Security or in lieu of any destroyed,
lost, or stolen Security will constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and will be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and
will preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost, or stolen
Securities.
SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any sinking fund
payment will, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and will be promptly cancelled by it. The Company
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may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered will be promptly cancelled by the Trustee. No
Securities will be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.08, except as expressly permitted by
this Indenture. All cancelled Securities held by the Trustee will be disposed of
as directed by a Company Order.
SECTION 2.09. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Except as otherwise provided as contemplated by Section
2.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
(b) Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") will forthwith cease to be
payable to the Holder on the relevant regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company
together with interest thereon (to the extent permitted by law) at the rate of
interest applicable to such Security, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest (and interest thereon, if any) to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
will be fixed in the following manner. The Company will notify the
Trustee in writing of the amount of Defaulted Interest (and interest
thereon, if any) proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company
will deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest (and
interest thereon, if any) or will make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest (and interest thereon, if
any) as in this clause (i) provided. Thereupon the Trustee will fix a
Special Record Date for the payment of such Defaulted Interest (and
interest thereon, if any) which will be not more than 15 calendar days
and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee will
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, will cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 calendar days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest (and
interest thereon, if any) and the Special Record Date therefor having
been so mailed, such Defaulted Interest will be paid to the Persons in
whose names the Securities of such series
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(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and will no longer be
payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest (and interest thereon, if any) on the Securities of any series
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause (ii), such manner of payment shall be deemed practicable by
the Trustee.
(c) Subject to the foregoing provisions of this Section
2.09, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security will carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.10. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 2.09) any interest on such Security and for all
other purposes whatsoever, whether or not such Security shall be overdue, and
neither the Company, the Trustees nor any agent of the Company or the Trustee
will be affected by notice to the contrary.
SECTION 2.11. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
2.01 for Securities of any series, interest on the Securities of each series
will be computed on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 2.12. CUSIP NUMBERS.
The Company in issuing any series of the Securities may use
CUSIP numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or exchange
with respect to such series PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
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ARTICLE III. REDEMPTION OF SECURITIES.
SECTION 3.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity will be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
(a) The election of the Company to redeem any Securities
will be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company will, at least 60 calendar days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company will furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and will
be irrevocable. Notice of redemption will be given by mail, first-class postage
prepaid, not less than 30 or more than 60 calendar days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register. All notices of redemption will state (i) the Redemption
Date, (ii) the Redemption Price, (iii) if less than all the Outstanding
Securities of any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed, (iv) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date, (v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, (vi) that the redemption is for
a sinking fund, if such is the case, and (vii) the specific provision of this
Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed will be selected not more
than 60 calendar days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee may deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. The Trustee
will promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities will
relate, in the case of any Securities
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
SECTION 3.03. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 6.03) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
of the Securities that are to be redeemed on that date.
SECTION 3.04. SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
contemplated by Section 2.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any premium will,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 3.05. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part will be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company will execute, and
the Trustee will authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE IV. SINKING FUNDS.
SECTION 4.01. APPLICABILITY OF ARTICLE.
The provisions of this Article IV will be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.01 for Securities of such series. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment,"
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and any payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any series, the amount
of any sinking fund payment may be subject to reduction as provided in Section
4.02. Each sinking fund payment with respect to Securities of a particular
series will be applied to the redemption of Securities of such series as
provided for by the terms of Securities of such series.
SECTION 4.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (b) may apply as a
credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities will be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment will be reduced
accordingly.
SECTION 4.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 calendar days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, that is to be satisfied by payment of cash and the
portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 4.02 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 calendar days before
each such sinking fund payment date, the Trustee will select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02(c) and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02(b). Such notice having been duly given, the redemption of such Securities
will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE.
SECTION 5.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 5.02 or Section 5.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article V (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article V, PROVIDED that
Section 5.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii).
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SECTION 5.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in
Section 5.01 to have this Section 5.02 applied to the Outstanding Securities of
any Defeasible Series and subject to the proviso to Section 5.01, the Company
will be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section 5.02 on and
after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company will be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 5.04 and as more fully
set forth in Section 5.04, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(b) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 2.07, 6.02, 6.03, and 10.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option
provided in Section 5.01 to have this Section 5.02 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 5.01 to have Section 5.03 applied to the Outstanding
Securities of such series.
SECTION 5.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in
Section 5.01 to have this Section 5.03 applied to the Outstanding Securities of
any Defeasible Series, (a) the Company will be released from its obligations
under Sections 6.04 through 6.07, inclusive, Section 11.01, and the provisions
of any Supplemental Indenture specified in such Supplemental Indenture, and (b)
the occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv)
(with respect to any of Sections 6.04 through 6.07, inclusive, Section 11.01,
and the provisions of any Supplemental Indenture specified in such Supplemental
Indenture), 8.01(a)(v), and 8.01(a)(viii) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities of
such series as provided in this Section on and after the date the conditions set
forth in Section 5.04 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and will have no liability in respect of any term, condition, or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 8.01(a)(iv)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of such series will be
unaffected thereby.
SECTION 5.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following will be the conditions to application of
either Section 5.02 or Section 5.03 to the Outstanding Securities of any
Defeasible Series:
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(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.08 and agrees to comply with the
provisions of this Article V applicable to it) as trust funds in trust
for the benefit of the Holders of Outstanding Securities of such series
(i) money in an amount, or (ii) U.S. Government Obligations that
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, without
reinvestment, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination thereof, in each
case sufficient to pay and discharge, and which will be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such
series on the respective Stated Maturities or on any earlier date or
dates on which the Securities of such series shall be subject to
redemption and the Company shall have given the Trustee irrevocable
instructions satisfactory to the Trustee to give notice to the Holders
of the redemption of the Securities of such series, all in accordance
with the terms of this Indenture and the Securities of such series.
(b) In the case of an election under Section 5.02, the
Company shall have delivered to the Trustee an Opinion of Counsel (from
a counsel who shall not be an employee of the Company) to the effect
that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon, such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize gain or loss for federal income tax purposes
as a result of the deposit, Defeasance, and discharge to be effected
with respect to the Securities of such series and will be subject to
federal income tax on the same amount, in the same manner, and at the
same times as would be the case if such deposit, Defeasance, and
discharge were not to occur.
(c) In the case of an election under Section 5.03, the
Company shall have delivered to the Trustee an Opinion of Counsel (from
a counsel who shall not be an employee of the Company) to the effect
that the Holders of the Outstanding Securities of such series will not
recognize gain or loss for federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to federal income tax on
the same amount, in the same manner, and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted solely
as a result of such deposit.
(e) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 8.01(a)(vi)
and (vii), at any time on or prior to the 90th calendar day after the
date of such deposit (it being understood that this condition will not
be deemed satisfied until after such 90th calendar day).
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(f) Such Defeasance or Covenant Defeasance will not cause
the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(i) Such Defeasance or Covenant Defeasance will not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust will be qualified under such Act or exempt
from regulation thereunder.
SECTION 5.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to the provisions of Section 6.03(e), all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
5.05 and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against
any tax, fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 5.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the
contrary, the Trustee will deliver or pay to the Company from time to time upon
a Company Request any money or U.S. Government Obligations held by it as
provided in Section 5.04 with respect to Securities of any Defeasible Series
that are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities of such series.
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SECTION 5.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article V with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
will be revived and reinstated as though no deposit had occurred pursuant to
this Article V with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 5.05 with respect to Securities of such series in accordance with
this Article V; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST ON SECURITIES.
The Company, for the benefit of each series of Securities,
will duly and punctually pay the principal of and any premium and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 6.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices, and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 6.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
(a) If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the
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benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each due date of the
principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(c) The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 6.03, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
(d) The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent will be released from all further liability with
respect to such money.
(e) Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
or any premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium, or interest has become due and
payable will be paid to the Company upon a Company Request (or, if then held by
the Company, will be discharged from such trust); and the Holder of such
Security will thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, will thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which will not
be less than 30 calendar days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 6.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments,
and governmental charges levied or imposed upon the Company or any Subsidiary of
the Company or upon the income, profits, or
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property of the Company or any Subsidiary of the Company, and (b) all lawful
claims for labor, materials, and supplies, in each case which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary of the
Company and might have a Material Adverse Effect; PROVIDED, HOWEVER, that the
Company will not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge, or claim the amount, applicability,
or validity of which is being contested in good faith by appropriate
proceedings.
SECTION 6.05. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair, and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments, and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section 6.05 will prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary of the Company and will not
result in a Material Adverse Effect.
SECTION 6.06. EXISTENCE.
Subject to Article XI, the Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory),
and franchises; PROVIDED, HOWEVER, that neither the Company nor any Subsidiary
will be required to preserve any such right or franchise if the Board of
Directors determines that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof will not result
in a Material Adverse Effect.
SECTION 6.07. COMPLIANCE WITH LAWS.
The Company will, and will cause each of its Subsidiaries
to, comply with all applicable federal, state, local, or foreign laws, rules,
regulations, or ordinances, including without limitation such laws, rules,
regulations, or ordinances relating to pension, environmental, employee, and tax
matters, in each case to the extent that the failure so to comply would have a
Material Adverse Effect.
SECTION 6.08. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 calendar
days after the end of each fiscal year of the Company ending after the date
hereof, an Officer's Certificate signed by the principal executive officer,
principal financial officer, or principal accounting officer of the Company
stating whether or not to the knowledge of such person after due inquiry the
Company is in default in the performance and observance of any of the terms,
provisions, and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company is in
default, specifying all such defaults and the nature and status thereof of which
such person may have such knowledge.
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SECTION 6.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision, or condition set forth in Sections 6.04 through 6.07,
inclusive, and the provisions of any Supplemental Indenture specified in such
Supplemental Indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will extend to or affect such term, provision, or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision, or condition will remain in full force and
effect.
ARTICLE VII. SECURITIES HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not more than 15 calendar days after the applicable
Regular Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date and (b) at such other
times as the Trustee may request in writing, within 30 calendar days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 calendar days prior to the time such list is
furnished; EXCLUDING from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, will be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them will be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
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SECTION 7.03. REPORTS BY TRUSTEE.
The Trustee will transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. A copy of each such report will, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission, and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange or
of any delisting thereof.
SECTION 7.04. REPORTS BY COMPANY.
The Company will file with the Trustee and the Commission,
and transmit to Holders, such information, documents, and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; PROVIDED that any
such information, documents, or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the
Trustee within 15 calendar days after the same is so required to be filed with
the Commission.
ARTICLE VIII. DEFAULT.
SECTION 8.01. EVENT OF DEFAULT.
(a) "Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it may be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree, or order
of any court or any order, rule, or regulation of any administrative or
governmental body):
(i) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable;
(iii) default in the making of any sinking fund
payment when and as due by the terms of a Security of that series;
(iv) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty, a default in the performance or breach of which
is elsewhere in this Section 8.01 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one
or more series of Securities other than that series), and continuance
of such default or breach for a period of 60 calendar days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
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(v) any nonpayment at maturity or other default is
made under any agreement or instrument relating to any other
Indebtedness of the Company (the unpaid principal amount of which is
not less than [$100.0] million), and, in any such case, such default
(A) continues beyond any period of grace provided with respect thereto
and (B) results in such Indebtedness becoming due prior to its stated
maturity or occurs at the final maturity of such Indebtedness;
PROVIDED, HOWEVER, that, subject to the provisions of Section 9.01 and
8.08, the Trustee will not be deemed to have knowledge of such
nonpayment or other default unless either (1) a Responsible Officer of
the Trustee has actual knowledge of nonpayment or other default or (2)
the Trustee has received written notice thereof from the Company, from
any Holder, from the holder of any such Indebtedness or from the
trustee under the agreement or instrument relating to such
Indebtedness;
(vi) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization, or other
similar law or (B) a decree or order adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive calendar days;
(vii) the commencement by the Company of a
voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief with
respect to the Company under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law, or the
consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator, or other similar official of the Company or of
any substantial part of its property pursuant to any such law, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(viii) any other Event of Default provided with
respect to Securities of that series.
(b) If an Event of Default (other than an Event of Default
arising under Section 8.01(a)(vi) or (vii)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every case the
Trustee or the Holders of not less than 25% in principal
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amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) will become immediately due and payable. If an
Event of Default under Section 8.01(a)(vi) or (vii) occurs, then the principal
of, premium, if any, and accrued interest on the Securities shall become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(c) At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article VIII provided, the Holders of a majority in
principal amount of the outstanding Securities of that series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of that series, (B)
the principal of (and premium, if any, on) any Securities of that series which
have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and (D)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel and (ii) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 8.01(d). No such rescission will
affect any subsequent default or impair any right consequent thereon.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii)
in respect of a covenant or provision hereof which under Article X cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, such default will cease
to exist, and any Event of Default arising therefrom will be deemed to have been
cured, for every purpose of this Indenture, but no such waiver will extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 8.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE ON
SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL; SUITS
FOR ENFORCEMENT BY TRUSTEE.
(a) The Company covenants that if (i) default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 calendar days or (ii)
default is made in the payment of the principal of (or premium, if any, on) any
Security when it becomes due and payable, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal and any premium and
interest and,
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to the extent that payment of such interest will be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel.
(b) If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee will be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee will be authorized to collect
and receive any money 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 consents 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 and its agents and counsel, and any other amounts due the Trustee under
Section 9.06.
(d) No provision of this Indenture will be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment, or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
(e) All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee will be
brought in its own name as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation,
expenses, disbursements, and advances of the Trustee and its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 8.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article
VIII will be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the
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Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 9.06;
SECOND: To the payment of the amounts then due and
unpaid for principal of and any premium and
interest on the Securities in respect of
which or for the benefit of which such money
has been collected, ratably, without
preference or priority of any kind,
according to the amounts due and payable on
such Securities for principal and any
premium and interest, respectively; and
THIRD: To the Company.
SECTION 8.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES.
No Holder of any Security of any series will have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Securities of
that series, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder, (c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses, and liabilities to be
incurred in compliance with such request, (d) the Trustee for 60 calendar days
after its receipt of such notice, request, and offer of indemnity has failed to
institute any such proceeding, and (e) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities of that
series, it being understood and intended that no one or more of such Holders
will have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb, or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 8.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF
RIGHTS NOT A WAIVER OF EVENT OF DEFAULT.
(a) Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost, or stolen Securities in
the last paragraph of Section 2.07, 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 will, 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, will not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
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(b) No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of
Default will impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article VIII 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 8.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING
SECURITIES TO DIRECT TRUSTEE.
The Holders of a majority in principal amount of the
Outstanding Securities of any series will have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, PROVIDED that (a) such direction will not be
in conflict with any rule of law or with this Indenture and (b) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 8.07. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS UNDER
THE INDENTURE OR AGAINST THE TRUSTEE.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered, or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED that neither this Section 8.07 nor the
Trust Indenture Act will be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 8.08. NOTICE OF DEFAULTS.
If a Default occurs hereunder with respect to Securities of
any series, the Trustee will give the Holders of Securities of such series
notice of such Default as and to the extent provided by the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any Default of the character specified in
Section 8.01(a)(iv) with respect to Securities of such series no such notice to
Holders will be given until at least 30 calendar days after the occurrence
thereof. The Company will give the Trustee notice of any uncured Event of
Default within 10 days after any Responsible Officer of the Company becomes
aware of or receives actual notice of such Event of Default.
SECTION 8.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, AND
INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security will have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to Section
2.09) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of such Holder.
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SECTION 8.10. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, and the Holders will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
SECTION 8.11. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings 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 to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
ARTICLE IX. CONCERNING THE TRUSTEE.
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee will be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee will be subject to the provisions of this Section 9.01.
SECTION 9.02. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 9.01: (a) the Trustee
may rely and will be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document believed by it to be genuine and to
have
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been signed or presented by the proper party or parties; (b) any request or
direction of the Company mentioned herein will be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board will be
sufficiently evidenced by a Board Resolution; (c) whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering, or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate; (d) the
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel will be full and complete authorization and protection in
respect of any action taken, suffered, or omitted by it hereunder in good faith
and in reliance thereon; (e) the Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses, and liabilities which might be incurred by it in compliance
with such request or direction; (f) the Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it will be
entitled to examine the books, records, and premises of the Company, personally
or by agent or attorney; and (g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 9.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, may be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent will not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 9.04. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 9.07 and 9.12, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, or such other agent.
SECTION 9.05. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required herein or by law. The
Trustee will be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
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SECTION 9.06. COMPENSATION AND REIMBURSEMENT.
The Company will (a) pay to the Trustee from time to time
such compensation for all services rendered by it hereunder as the parties shall
agree from time to time (which compensation will not be limited to any provision
of law in regard to the compensation of a trustee of an express trust); (b)
except as otherwise expressly provided herein, reimburse the Trustee upon its
request for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of agents and
counsel), except any such expense, disbursement, or advance as may be
attributable to its negligence or bad faith; and (c) indemnify the Trustee for,
and hold the Trustee harmless against, any loss, liability, or expense incurred
without negligence or bad faith on its part arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
SECTION 9.07. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or acquires a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 9.08. CORPORATE TRUSTEE REQUIRED ELIGIBILITY.
There will at all times be one or more Trustees hereunder
with respect to the Securities of each series, at least one of which will be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $100,000,000 and its Corporate
Trust Office or principal office in New York City, or any other major city in
the United States that is acceptable to the Company. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining state or federal authority, then for the purposes
of this Section 9.08, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.08, it will resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
SECTION 9.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article IX will become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 9.10.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If, at any time, (i) the Trustee fails to comply with
Section 9.07 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, (ii) the
Trustee ceases to be eligible under Section 9.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the
Trustee becomes incapable of acting or is adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property is appointed or any public officer
takes charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation, or liquidation, then, in any such case,
(A) the Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable
of acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there will be only one Trustee with
respect to the Securities of any particular series) and will comply with the
applicable requirements of Section 9.10. If, within one year after such
resignation, removal, or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 9.10,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 9.10, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company will give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all holders of Securities of such series in the manner provided in
Section 13.03. Each notice will include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
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SECTION 9.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed will execute, acknowledge, and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee will become effective and such
successor Trustee, without any further act, deed, or conveyance, will become
vested with all the rights, powers, trusts, and duties of the retiring Trustee,
but, on the request of the Company or the successor Trustee, such retiring
Trustee will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of the
retiring Trustee and will duly assign, transfer, and deliver to such Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee, and each successor Trustee with respect to the
Securities of one or more series will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such appointment
and which (i) will contain such provisions as may be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all Securities, will contain such provisions as may be deemed necessary or
desirable to confirm that all the rights, powers, trusts, and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring will continue to be vested in the
retiring Trustee, and (iii) will add to or change any of the provisions of this
Indenture as may be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture will constitute such Trustees
co-trustees of the same trust and that each such Trustee will be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustees and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
will become effective to the extent provided therein and each such successor
Trustee, without any further act, deed, or conveyance, will become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but on request of the Company or any successor
Trustee, such retiring Trustee will duly assign, transfer, and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
will execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all applicable rights, powers, and trusts
referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless
at the time of such acceptance such successor Trustee is qualified and eligible
under this Article IX.
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SECTION 9.11. MERGER, CONVERSION, CONSOLIDATION, OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee may be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee hereunder,
provided such corporation is otherwise qualified and eligible under this Article
IX, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 9.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee is or becomes a creditor of the
Company (or any other obligor upon the Securities), the Trustee will be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 9.13. APPOINTMENT OF AUTHENTICATING AGENT.
(a) The Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which will be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference will be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 9.13,
the combined capital and surplus of such Authenticating Agent will be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 9.13, such
Authenticating Agent will resign immediately in the manner and with the effect
specified in this Section 9.13.
(b) Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion, or consolidation to which such
Authenticating Agent may be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation is otherwise
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eligible under this Section 9.13, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 9.13, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder will
become vested with all the rights, powers, and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent will be appointed unless eligible under the
provisions of this Section 9.13.
(d) The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section
9.13[, and the Trustee will be entitled to be reimbursed for such payments,
subject to the provisions of Section 9.06].
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 9.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of certificate of authentication in the
following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
-------------------------------------
As Trustee
By:
--------------------------------
As Authenticating Agent
By: --------------------------------
Authorized Officer
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ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS.
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE ENTERED INTO
WITHOUT CONSENT OF HOLDERS.
Without the consent of or notice to any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities, all to the extent otherwise
permitted hereunder;
(b) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this
Indenture to such extent as may be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form;
(e) to add to, change, or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, PROVIDED
that any such addition, change, or elimination (i) will neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) will become effective only when
there is no such Security Outstanding;
(f) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 2.02;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as may be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 9.10; or
(h) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED that such
action pursuant to this clause (h) will not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF AT LEAST A
MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING SECURITIES.
(a) With the consent of the Holders of a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture will, without the consent of the Holder of
each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Sections 8.01(b), or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture; or
(iii) modify any of the provisions of this Section 10.02,
Section 8.01(d) or Section 6.09, except to increase the percentage in
principal amount of Holders required under any such Section or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, PROVIDED, HOWEVER, that this
clause (c) will not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section 10.02 and Section 6.09, or the deletion of this
proviso, in accordance with the requirements of Sections 9.10 and
10.01(g).
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, will be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(c) It will not be necessary for any Act of Holders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
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SECTION 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article X or the modifications
thereby of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 9.01) will be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but will not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, or immunities under this Indenture or otherwise.
SECTION 10.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article X, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
SECTION 10.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article X will conform to the requirements of the Trust Indenture Act.
SECTION 10.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article X may, and
will if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER.
SECTION 11.01. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES PERMITTED ONLY ON
CERTAIN TERMS.
(a) The Company shall not consolidate with or merge with or
into any other Person, or transfer (by lease, assignment, sale, or otherwise)
all or substantially all of its properties and assets to another Person unless
(i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred
(the Company or such other Person being referred to as the "Surviving Person")
shall be a corporation organized and validly existing under the laws of the
United States, any state thereof, or the District of Columbia, and shall
expressly assume, by an indenture supplement, all the obligations of the Company
under the Securities and the Indenture, (ii) immediately after the transaction
and the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith,
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no Default will exist, and (iii) an Officer's Certificate has been delivered to
the Trustee to the effect that the conditions set forth in the preceding clauses
(i) and (ii) have been satisfied and an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) has been delivered to the Trustee to
the effect that the conditions set forth in the preceding clause (i) have been
satisfied.
(b) The Surviving Person will succeed to and be substituted
for the Company with the same effect as if it had been named herein as a party
hereto, and thereafter the predecessor corporation will be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 12.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will upon a Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense the Company, will execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when: (a) either (i) all Securities theretofore
authenticated and delivered (other than (A) Securities which have been
destroyed, lost, or stolen and which have been replaced or paid as provided in
Section 2.07 and (B) Securities for the payment of which money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 6.03) have been delivered to the Trustee for cancellation or (ii) all
such Securities not theretofore delivered to the Trustee for cancellation (A)
have become due and payable, (B) will become due and payable at their Stated
Maturity within one year, or (C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of clause (A), (B), or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06, the obligations of
the Trustee to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 12.01, the obligations of the Trustee under Sections 6.03(e) and
12.02, will survive.
SECTION 12.02. APPLICATION OF TRUST MONEY.
Subject to provisions of Section 6.03(e), all money
deposited with the Trustee pursuant to Section 12.01 will be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any
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Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE XIII. MISCELLANEOUS PROVISIONS.
SECTION 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises, and agreements in
this Indenture contained by or on behalf of the Company will bind its successors
and assigns, whether so expressed or not.
SECTION 13.02. SERVICE OF REQUIRED NOTICE TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with (a) the Trustee
by any Holder or by the Company will be sufficient for every purpose hereunder
if made, given, furnished, or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department or (b) the Company
by the Trustee or by any Holder will be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 905 West
Boulevard North, Elkhart, Indiana 46514 (marked for the attention of both the
Chief Financial Officer and the General Counsel) or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 13.03. SERVICE OF REQUIRED NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder will affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by Holders
will be filed with the Trustee, but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In
case by reason of the suspension of regular mail service or by reason of any
other cause it will be impracticable to give such notice by mail, then such
notification as may be made with the approval of the Trustee will constitute a
sufficient notification for every purpose hereunder.
SECTION 13.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
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This Indenture and the Securities will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
SECTION 13.05. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company will furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion will be
given in the form of an Officer's Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and will
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
SECTION 13.06. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 13.07. PAYMENTS DUE ON NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption
Date, or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
13.07)) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
PROVIDED that interest will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.
SECTION 13.08. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed on any Person by Sections 310 to and including
317 of the Trust Indenture Act (including provisions automatically deemed
included in this Indenture pursuant to the Trust Indenture Act unless this
Indenture provides that such provisions are excluded), which are deemed to be a
part of and govern this Indenture, whether or not contained herein, then such
imposed duties will control.
SECTION 13.09. INVALIDITY OF PARTICULAR PROVISIONS.
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In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such the validity, illegality, or enforceability
will not affect any other provision of this Indenture or of the Securities, but
this Indenture and such Securities will be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument may be executed in any number of
counterparts, each of which will be an original, but such counterparts will
together constitute but one and the same instrument.
SECTION 13.11. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for any
purpose of this Indenture and (subject to Section 9.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
13.11.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Security will bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu thereof
in respect of anything done, omitted, or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization,
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direction, notice, consent, waiver, or other action provided or permitted by
this Indenture to be given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date (or their duly
appointed agents), and only such Persons, will be entitled to give or take the
relevant action, whether or not such Holders remain Holders after such record
date. With regard to any action that may be given or taken hereunder only by
Holders of a requisite principal amount of Outstanding Securities of any series
(or their duly appointed agents) and for which a record date is set pursuant to
this paragraph, the Company may, at its option, set an expiration date after
which no such action purported to be given or taken by any Holder will be
effective hereunder unless given or taken on or prior to such expiration date by
Holders of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such date to any later date. Nothing in this
paragraph will prevent any Holder (or any duly appointed agent thereof) from
giving or taking, after any such expiration date, any action identical to, or,
at any time, contrary to or different from, the action or purported action to
which such expiration date relates, in which event the Company may set a record
date in respect thereof pursuant to this paragraph. Nothing in this Section
13.11(e) will be construed to render ineffective any action taken at any time by
the Holders (or their duly appointed agents) of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is so
taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company
will not set a record date for, and the provisions of this Section 13.11(e) will
not apply with respect to, any notice, declaration, or direction referred to in
the next paragraph.
(f) Upon receipt by the Trustee from any Holder of
Securities of a particular series of (a) any notice of default or breach
referred to in Section 8.01(a)(iv) or 8.01(a)(v) with respect to Securities of
such series, if such default or breach has occurred and is continuing and the
Trustee shall not have given such notice to the Company, (b) any declaration of
acceleration referred to in Section 8.01(b), if an Event of Default with respect
to Securities of such series has occurred and is continuing and the Trustee
shall not have given such a declaration to the Company, or (c) any direction
referred to in Section 8.06 with respect to Securities of such series, if the
Trustee shall not have taken the action specified in such direction, then a
record date will automatically and without any action by the Company or the
Trustee be set for determining the Holders of Outstanding Securities of such
series entitled to join in such notice, declaration, or direction, which record
date will be the close of business on the tenth calendar day following the day
on which the Trustee receives such notice, declaration, or direction. Promptly
after such receipt by the Trustee, and in any case not later than the fifth
calendar day thereafter, the Trustee will notify the Company and the Holders of
Outstanding Securities of such series of any such record date so fixed. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, will be entitled to join in such
notice, declaration, or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that, unless such notice, declaration, or
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this Section 13.11(f) will be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration, or direction contrary
to or
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different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which
event a new record date in respect thereof will be set pursuant to this Section
13.11(f). Nothing in this Section 13.11(f) will be construed to render
ineffective any notice, declaration, or direction of the type referred to in
this Section 13.11(f) given at any time to the Trustee and the Company by
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 13.12. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and will not affect the construction hereof.
SECTION 13.13. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy, or claim under this Indenture.
--------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] CTS CORPORATION
By:___________________________
Name:_________________________
Title:________________________
Attest:
________________________
Name:___________________
Title:__________________
[NAME OF TRUSTEE]
By:___________________________
Name:_________________________
Title:________________________
Attest:
________________________
Name:___________________
Title:__________________
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STATE OF ____________________)
) ss.:
COUNTY OF ___________________)
On this ____ day of , , before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ___________________ of CTS Corporation, one of the entities
described in and which executed the above instrument; that he/she knows the seal
of said entity; that the seal or a facsimile thereof affixed to said instrument
is such seal; that it was so affixed by authority of the Board of Directors of
said entity, and that he/she signed his/her name thereto by like authority.
________________________________
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
________________________________
Notary Public
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STATE OF ____________________)
) ss.:
COUNTY OF ___________________)
On this ____ day of , , before me personally came __________________, to me
known, who, being by me duly sworn, did depose and say that he/she is
___________________ of _________________, one of the entities described in and
which executed the above instrument; that he/she knows the seal of said entity;
that the seal or a facsimile thereof affixed to said instrument is such seal;
that it was so affixed by authority of the Board of Directors of said entity,
and that he/she signed his/her name thereto by like authority.
________________________________
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
________________________________
Notary Public
59
<PAGE>
EXHIBIT 5.1
CTS CORPORATION
905 West Boulevard North
Elkhart, Indiana 46514
November 10, 1999
CTS Corporation
905 West Boulevard North
Elkhart, Indiana 46514
Re: Registration Statement on Form S-3 of up to
$500,000,000 of Securities of CTS Corporation
Ladies and Gentlemen:
I am General Counsel, Secretary and an Executive Vice President of the
Company and have acted as counsel to CTS Corporation, an Indiana corporation
(the "Company"), in connection with the authorization of the possible issuance
and sale from time to time by the Company of (i) certain debt securities of the
Company (the "Debt Securities"), (ii) shares of the Company's common stock,
without par value (the "Common Stock"), (iii) shares of one or more series of
the Company's preferred stock, without par value (the "Preferred Stock"), and
(iv) certain warrants to purchase Debt Securities, Common Stock, Preferred
Stock, or a combination thereof (the "Warrants"), in each case as contemplated
by the Company's Registration Statement on Form S-3 (the "Registration
Statement"). The Debt Securities, Common Stock, Preferred Stock, and Warrants
are collectively referred to herein as the "Securities." Except as otherwise
defined herein, capitalized terms that are defined in the Registration Statement
are used herein as so defined.
I have examined such documents, records, and matters of law as I have deemed
necessary for purposes of this opinion, and based thereupon, I am of the opinion
that:
1. The Debt Securities, when (a) duly executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture and issued and sold in accordance with the Registration
Statement and (b) delivered to the purchaser or purchasers thereof upon
receipt by the Company of such lawful consideration therefor as the
Company's Board of Directors (or a duly authorized committee thereof or a
duly authorized officer of the Company) may determine, will be valid and
binding obligations of the Company.
2. The Common Stock, when (a) issued and sold in accordance with the
Registration Statement and (b) delivered to the purchaser or purchasers
thereof upon receipt by the Company of such lawful consideration therefor
as the Company's Board of Directors (or a duly authorized committee
thereof or a duly authorized officer of the Company) may determine,
assuming that the Company at such time has authorized but unissued shares
of Common Stock remaining under its Articles of Incorporation, will be
validly issued, fully paid and nonassessable.
3. The Preferred Stock, when (a) issued and sold in accordance with the
Registration Statement and the provisions of an applicable Certificate of
Designation that has been duly adopted by the Board of Directors of the
Company and duly filed in accordance with Indiana law and (b) delivered
to the purchaser or purchasers thereof upon receipt by the Company of
such lawful consideration therefor as the Company's Board of Directors
(or a duly authorized committee thereof or a duly authorized officer of
the Company) may determine, will be validly issued, fully paid and
nonassessable.
4. The Warrants, when (a) issued and sold in accordance with the
Registration Statement and the provisions of an applicable Warrant
Agreement and (b) delivered to the purchaser or purchasers thereof upon
receipt by the Company of such lawful consideration therefor as the
Company's
<PAGE>
CTS Corporation
November 10, 1999
Page 2
Board of Directors (or a duly authorized committee thereof or a duly
authorized officer of the Company) may determine, will be valid and
binding obligations of the Company.
In rendering the foregoing opinions, I have assumed that (i) the definitive
terms of each class and series of the Securities not presently provided for in
the Indenture or the Company's Articles of Incorporation will have been
established in accordance with all applicable provisions of law, the Indenture,
the Company's Articles of Incorporation and Bylaws, and the authorizing
resolutions of the Company's Board of Directors, and reflected in appropriate
documentation approved by us and, if applicable, duly executed and delivered by
the Company and any other appropriate party, (ii) the interest rate on the Debt
Securities will not be higher than the maximum lawful rate permitted from time
to time under applicable law, (iii) any Securities consisting of Common Stock or
Preferred Stock, and any Common Stock or Preferred Stock for or into which any
other Securities are exercisable, exchangeable or convertible, will have been
duly authorized and reserved for issuance, (iv) each Warrant Agreement will have
been duly authorized, executed and delivered by, and will constitute a valid and
binding obligation of, each party thereto, (v) the Registration Statement, and
any amendments thereto, will have become effective, (vi) a Prospectus Supplement
describing each class or series of Securities offered pursuant to the
Registration Statement will have been filed with the Commission, (vii) the
resolutions authorizing the Company to register, offer, sell, and issue the
Securities will remain in effect and unchanged at all times during which the
Securities are offered, sold, or issued by the Company, and (viii) all
Securities will be issued in compliance with applicable federal and state
securities laws.
In rendering the foregoing opinion, I have relied as to certain factual
matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the State of Indiana and the federal laws of the
United States of America, as in effect on the date hereof.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to me in the Prospectus under the
caption "Validity of Securities." In giving such consent, I do not thereby admit
that I am within the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations promulgated
thereunder.
Very truly yours,
/s/ JEANNINE M. DAVIS
EXECUTIVE VICE PRESIDENT ADMINISTRATION,
GENERAL COUNSEL AND SECRETARY
<PAGE>
Exhibit 12.1
($ in thousands)
<TABLE>
<CAPTION>
6 months Proforma
7/4/99 12/31/98 12/31/97 12/31/96 12/31/95 12/31/94 12/31/98
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Pretax earnings $24,135 $49,441 $35,730 $33,602 $27,684 $21,487 $41,341
Fixed Charges:
Interest expense including
amortization of debt expense 4,221 2,389 2,573 1,449 1,790 714 9,853
"Rental" interest expense 981 418 343 389 390 457 2,195
------------------------------------------------------------------- -------
Total fixed charges 5,202 2,807 2,916 1,838 2,180 1,171 12,048
Pretax earnings plus Total fixed
charges (EBIT) $29,337 $52,248 $38,646 $35,440 $29,864 $22,658 $53,389
EBIT divided by Total fixed charges 5.6 18.6 13.3 19.3 13.7 19.3 4.4
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 28, 1999 relating to the
financial statements and financial statement schedules, which appears in CTS
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 1998 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
/s/ PRICEWATERHOUSECOOPERS LLP
Chicago, Illinois
November 10, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG LLP
The Board of Directors
Motorola, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-3 of CTS Corporation of our report dated February 24, 1999, with
respect to the combined balance sheets of the Component Products Division of
Motorola, Inc. as of December 31, 1997 and 1998, and the related combined
statements of operations and division equity, and cash flows for each of the
years in the three-year period ended December 31, 1998, which report is included
in the Form 8-K/A of CTS Corporation dated May 12, 1999, and to the reference to
our firm under the heading "Experts" in the prospectus.
/s/KPMG LLP
Chicago, Illinois
November 5, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
By signing below, I hereby constitute and appoint Jeannine M. Davis, Esq.,
my true and lawful attorney and agent to do any and all acts and things and to
execute any and all instruments in my name and behalf in my capacities as
director and/or officer of CTS Corporation, an Indiana corporation (the
"Company"), which said attorney and agent may deem necessary or advisable or
which may be required to enable the Company to comply with the Securities Act of
1933, as amended (the "Securities Act"), and any rules, regulations or
requirements of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement on Form S-3 (or any other appropriate
form) and any abbreviated registration statement relating thereto permitted
pursuant to Rule 462(b) under the Securities Act for the purpose of registering
pursuant to the Securities Act debt and equity securities of the Company having
an aggregate offering price not to exceed $500 million, including specifically,
but without limiting the generality of the foregoing, the power and authority to
sign for me, in my name and behalf in my capacities as director and/or officer
of the Company (individually or on behalf of the Company), such Registration
Statement and any such abbreviated registration statement, and any and all
amendments and supplements thereto, and to file the same, with all exhibits
thereto and other instruments or documents in connection therewith, with the
Securities and Exchange Commission, and hereby ratify and confirm all that said
attorneys and agents, or any of them, may do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
November 3, 1999.
<TABLE>
<CAPTION>
<S> <C>
/s/ JOSEPH P. WALKER /s/ TIMOTHY J. CUNNINGHAM
- -------------------------------------------- --------------------------------------------
Joseph P. Walker Timothy J. Cunningham
/s/ LAWRENCE J. CIANCIA /s/ THOMAS G. CODY
- -------------------------------------------- --------------------------------------------
Lawrence J. Ciancia Thomas G. Cody
/s/ GERALD H. FRIELING, JR. /s/ ROBERT A. PROFUSEK
- -------------------------------------------- --------------------------------------------
Gerald H. Frieling, Jr. Robert A. Profusek
/s/ RANDALL J. WEISENBURGER
- --------------------------------------------
Randall J. Weisenburger
</TABLE>
