<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 1996
REGISTRATION NO. 033-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAYTON HUDSON CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MINNESOTA 41-0215170
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
777 NICOLLET MALL
MINNEAPOLIS, MINNESOTA 55402
612/370-6948
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN C. KOWALKE
TREASURER
DAYTON HUDSON CORPORATION
777 NICOLLET MALL
MINNEAPOLIS, MINNESOTA 55402
612/370-6948
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
W. SMITH SHARPE, JR. TIMOTHY R. BAER
FAEGRE & BENSON P.L.L.P. DAYTON HUDSON CORPORATION
2200 NORWEST CENTER 777 NICOLLET MALL
90 SOUTH SEVENTH STREET MINNEAPOLIS, MINNESOTA 55402
MINNEAPOLIS, MINNESOTA 55402
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED(1) REGISTERED(2) PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities, Preferred
Shares, Depositary Shares,
Common Stock, par value $1.00
per share, (3) and Securities
Warrants........................ $1,000,000,000(4) 100% $1,000,000,000(5) $344,830
</TABLE>
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(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Includes such indeterminate number of Preferred Shares and shares of Common
Stock as may be issued at indeterminable prices, but with an aggregate
initial offering price not to exceed $1,000,000,000, plus such
indeterminate number of Preferred Shares as may be issued upon exercise of
Securities Warrants or in exchange for, or upon conversion of, Debt
Securities or other Preferred Shares registered hereunder for which no
separate consideration will be received, such indeterminate number of
Depositary Shares as may be issued in the event the Registrant elects to
offer fractional interests in Preferred Shares registered hereunder; and
such indeterminate number of shares of Common Stock as may be issued upon
exercise of Securities Warrants or in exchange for, or upon conversion of,
Debt Securities, Preferred Shares or Depositary Shares registered
hereunder.
(3) Associated with the Common Stock are preferred share purchase rights that
will not be exercisable or evidenced separately from the Common Stock prior
to the occurrence of certain events.
(4) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(5) No separate consideration will be received for Common Stock, Preferred
Shares or Depositary Shares that are issued upon conversion of Debt
Securities, Preferred Shares or Depositary Shares.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Pursuant to Rule 429, the Prospectus contained herein also relates to Debt
Securities and/or Warrants registered on Form S-3, Registration No. 33-42364
and Registration No. 33-59008.
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<PAGE>
PROSPECTUS
DAYTON HUDSON CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
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Dayton Hudson Corporation (the "Corporation") intends to offer from time to
time in one or more series its unsecured debt securities (the "Debt
Securities"), warrants to purchase the Debt Securities ("Debt Warrants"),
shares of preferred stock (the "Preferred Shares"), interests in which may be
represented by depositary shares ("Depositary Shares"), shares of common
stock, $1.00 par value per share (the "Common Stock"), warrants to purchase
the Preferred Shares or Depositary Shares ("Preferred Share Warrants") or
warrants to purchase Common Stock ("Common Stock Warrants," and together with
the Debt Warrants and Preferred Share Warrants, the "Securities Warrants"),
with an aggregate initial public offering price (including the exercise price
of any Securities Warrants) of up to $1,271,200,000 or the equivalent thereof
in one or more foreign currencies or composite currencies, including European
Currency Units ("ECU"), on terms to be determined at the time of sale. The
Debt Securities, Preferred Shares, Depositary Shares, Common Stock and
Securities Warrants may be offered separately or as a part of units consisting
of one or more such securities ("Units," and together with the Debt
Securities, Preferred Shares, Depositary Shares, Common Stock and Securities
Warrants, the "Offered Securities"), in separate series, in amounts, at prices
and on terms to be set forth in one or more supplements to this Prospectus (a
"Prospectus Supplement").
Specific terms of the Offered Securities, including such terms as, where
applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, currency, denominations, maturity, premium, rate
and time of payment of interest, terms for redemption at the option of the
Corporation or repayment at the option of the holder, terms for sinking fund
payments and the initial public offering price; (ii) in the case of Preferred
Shares, the specific title, any dividend, liquidation, redemption, conversion,
voting and other rights, and the initial public offering price and whether
interests in the Preferred Shares will be represented by Depositary Shares;
(iii) in the case of Common Stock, the number of shares or fractional
interests therein, the initial public offering price and other rights in
connection with the offer and sale of the Common Stock; and (iv) in the case
of Securities Warrants, where applicable, the duration, offering price,
exercise price and detachability, are set forth in the accompanying Prospectus
Supplement. Units may be issued in amounts, at prices, on terms and containing
such conditions, covenants and other provisions, and consisting of such
Offered Securities and other securities, as will be set forth in a Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to and any listing on a securities exchange of the Offered Securities
covered by the Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of any of the Offered Securities, their
names, and any applicable fee, commission, purchase price or discount
arrangements with them, will be set forth, or will be calculable from the
information set forth, in the Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Securities and
Exchange Commission (the "Commission") are incorporated in and made a part of
this Prospectus by reference: (i) Annual Report on Form 10-K for the year
ended January 28, 1995 (which incorporates by reference certain portions of
the Corporation's 1994 Annual Report to Shareholders, including financial
statements and accompanying information, and certain portions of the
Corporation's definitive Notice and Proxy Statement for the Corporation's 1995
Annual Meeting of Shareholders); (ii) Quarterly Reports on Form 10-Q for the
quarters ended April 29, 1995, July 29, 1995 and October 28, 1995; (iii)
Registration Statement on Form 8-A dated September 18, 1986, as amended by
Amendment No. 1 on Form 8 dated May 28, 1992; and (iv) Registration Statement
on Form 8-A filed with respect to the Common Stock.
All documents filed by the Corporation with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities offered
hereby shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the accompanying Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any or all of the information
incorporated herein by reference (other than exhibits, unless such exhibits
are specifically incorporated by reference in such documents). Written
requests for such copies should be directed to the Secretary, Dayton Hudson
Corporation, 777 Nicollet Mall, Minneapolis, Minnesota 55402. Telephone
requests may be directed to 612/370-6948.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus or a Prospectus
Supplement in connection with the offering described herein and therein, and
any information or representations not contained herein or therein must not be
relied upon as having been authorized. This Prospectus may not be used to
consummate sales of Offered Securities unless accompanied by a Prospectus
Supplement. The delivery of this Prospectus and a Prospectus Supplement
relating to particular Offered Securities shall not constitute an offer of any
of the other Offered Securities covered by this Prospectus. The delivery of
this Prospectus or any Prospectus Supplement does not constitute an offer to
sell or a solicitation of an offer to buy the Offered Securities in any
circumstances in which such offer or solicitation of an offer to buy the
Offered Securities is unlawful.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports and other information with the
Commission. Such reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth Street N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located
at Seven World Trade Center, Suite 1300, New York, New York 10048, and at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies of such
materials can be obtained from the Public Reference Section of the Commission
at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed rates.
Reports, proxy and information statements and other information concerning the
Corporation can also be inspected at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005, and at the offices of
the Pacific Stock Exchange at 301 Pine Street, San Francisco, California
94104.
2
<PAGE>
Additional information regarding the Corporation and the Offered Securities
offered hereby is contained in the Registration Statement and the exhibits
relating thereto in respect of the Offered Securities offered hereby, filed
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). For further information pertaining to the Corporation and
the Offered Securities offered hereby, reference is made to the Registration
Statement and the exhibits thereto, which may be inspected without charge at
the office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates.
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars,"
"U.S. dollars," or "U.S. $").
THE CORPORATION
The Corporation is a national diversified retail company operating through
three separate operating divisions: Target upscale discount stores, Mervyn's
moderate-priced middle-market promotional department stores and the Department
Store Division. At October 28, 1995, these operating divisions operated 1,032
stores in 34 states.
The Corporation was incorporated in Minnesota in 1902. All references to the
"Corporation" herein relate to Dayton Hudson Corporation and its subsidiaries
and their predecessors unless otherwise indicated by the context. The
Corporation's principal executive offices are located at 777 Nicollet Mall,
Minneapolis, Minnesota 55402 (telephone 612/370-6948).
Additional information concerning the Corporation is included in the
documents incorporated by reference herein. See "Incorporation of Certain
Documents by Reference."
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities offered hereby will be added
to the general funds of the Corporation and may be used to meet working
capital requirements, for capital expenditures relating to the construction
and fixturing of certain of the Corporation's new stores and remodeling of
certain of the Corporation's existing stores, to refinance certain debt, or to
finance acquisitions of real estate, other assets or companies. Pending such
applications, the funds may be used to reduce short-term borrowings or may be
invested in short-term marketable securities.
3
<PAGE>
BUSINESS
GENERAL
The data reported below detail the operations of the Corporation's business
segments.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------------------
FEBRUARY 2, FEBRUARY 1, JANUARY 30, JANUARY 29, JANUARY 28,
1991 1992 1993 1994 1995
----------- ----------- ----------- ----------- -----------
(MILLIONS OF DOLLARS)
<S> <C> <C> <C> <C> <C>
Revenues
Target................ $ 8,175 $ 9,041 $10,393 $11,743 $13,600
Mervyn's.............. 4,055 4,143 4,510 4,436 4,561
Department Store
Division............. 2,509 2,931 3,024 3,054 3,150
------- ------- ------- ------- -------
Total............... $14,739 $16,115 $17,927 $19,233 $21,311
======= ======= ======= ======= =======
Operating Profit
Target................ $ 466 $ 458 $ 574 $ 662 $ 732
Mervyn's.............. 366 284 284 179 206
Department Store
Division............. 183 168 228 268 270
------- ------- ------- ------- -------
Total............... 1,015 910 1,086 1,109 1,208
Interest Expense, Net. 325 398 437 446 426
Corporate and Other... 31 40 38 56 68
------- ------- ------- ------- -------
Earnings Before Income
Taxes.................. $ 659 $ 472 $ 611 $ 607 $ 714
======= ======= ======= ======= =======
Operating Profit as a
Percent of Revenues
Target................ 5.7% 5.1% 5.5% 5.6% 5.4%
Mervyn's.............. 9.0 6.9 6.3 4.0 4.5
Department Store
Division............. 7.3 5.7 7.5 8.8 8.6
------- ------- ------- ------- -------
Assets
Target................ $ 3,722 $ 4,393 $ 4,913 $ 5,495 $ 6,247
Mervyn's.............. 2,439 2,686 3,042 2,750 2,917
Department Store
Division............. 2,261 2,317 2,292 2,240 2,392
Corporate and Other... 102 89 90 293 141
------- ------- ------- ------- -------
Total............... $ 8,524 $ 9,485 $10,337 $10,778 $11,697
======= ======= ======= ======= =======
Depreciation
Target................ $ 190 $ 208 $ 236 $ 263 $ 293
Mervyn's.............. 107 117 135 146 145
Department Store
Division............. 69 84 87 88 92
Corporate and Other... 3 1 1 1 1
------- ------- ------- ------- -------
Total............... $ 369 $ 410 $ 459 $ 498 $ 531
======= ======= ======= ======= =======
Capital Expenditures
Target................ $ 374 $ 605 $ 571 $ 716 $ 842
Mervyn's.............. 210 303 294 180 146
Department Store
Division............. 1,155 106 72 80 96
Corporate and Other... 1 2 1 2 11
------- ------- ------- ------- -------
Total............... $ 1,740 $ 1,016 $ 938 $ 978 $ 1,095
======= ======= ======= ======= =======
</TABLE>
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The Department Store Division includes the acquisition of Marshall Field's
and its results of operations from June 24, 1990, the effective date of
acquisition.
Operating profit is LIFO earnings from operations before corporate expense,
interest and income taxes.
4
<PAGE>
TARGET
Target is an upscale discount chain which provides quality merchandise at
low prices in guest-friendly stores. Target operated 673 stores in 33 states
at October 28, 1995.
MERVYN'S
Mervyn's is a middle-market promotional department store chain emphasizing
name-brand and private-label casual apparel and home soft goods. Mervyn's
operated 295 stores in 16 states at October 28, 1995.
DEPARTMENT STORE DIVISION
The Department Store Division offers trend leadership, quality merchandise
and superior service. At October 28, 1995, the Department Store Division
operated 64 Dayton's, Hudson's and Marshall Field's stores in nine states.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following are the consolidated ratios of earnings to fixed charges and
to fixed charges and preferred stock dividends for each of the years in the
five-year period ended January 28, 1995, and the nine-month periods ended
October 29, 1994 and October 28, 1995:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED NINE MONTHS ENDED
----------------------------------------------------------- -----------------------
FEBRUARY 2, FEBRUARY 1, JANUARY 30, JANUARY 29, JANUARY 28, OCTOBER 29, OCTOBER 28,
1991 1992 1993 1994 1995 1994 1995
----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... 2.72x 2.00 2.22 2.19 2.43 1.68 1.32
Ratio of Earnings to
Fixed Charges and
Preferred Stock
Dividends.............. 2.47x 1.85 2.06 2.04 2.25 1.56 1.23
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, income
before income taxes plus fixed charges less capitalized interest has been
divided by fixed charges. For purposes of computing the ratios of earnings to
fixed charges and preferred stock dividends, income before income taxes plus
fixed charges less capitalized interest has been divided by fixed charges and
pretax earnings required to cover preferred stock dividends. Fixed charges
consist of interest on short-term borrowings and long-term debt, amortization
of debt expense, capitalized interest and the interest portion of rental
expense. Pretax earnings required to cover preferred stock dividends have been
computed by dividing preferred stock dividends, adjusted for the tax benefits
related to the unallocated shares, by one minus the Corporation's income tax
rate.
DESCRIPTION OF DEBT SECURITIES
The following descriptions of the terms of the Debt Securities set forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Debt Securities are to be issued under an Indenture dated as of February
1, 1986, as amended and supplemented from time to time (collectively, the
"Indenture"), between the Corporation and First Trust National Association, as
Trustee (the "Trustee"). A copy of the Indenture is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Debt Securities and the Indenture
5
<PAGE>
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indenture, including the
definition therein of certain terms. Section numbers below refer to provisions
of the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Corporation.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and provides that Debt Securities may be issued thereunder
from time to time in one or more series. (Section 301)
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms of the Debt
Securities: (i) the title of the Debt Securities; (ii) any limit on the
aggregate principal amount of the Debt Securities; (iii) the price (expressed
as a percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (iv) the date or dates on which the Debt Securities
will mature; (v) the rate or rates (which may be fixed or variable) per annum
at which the Debt Securities will bear interest, if any; (vi) the date from
which such interest, if any, on the Debt Securities will accrue, the Interest
Payment Dates on which such interest, if any, will be payable, the date on
which payment of such interest, if any, will commence and the Regular Record
Dates for such Interest Payment Dates, if any; (vii) the dates, if any, on
which and the price or prices at which the Debt Securities will, pursuant to
any mandatory sinking fund provisions, or may, pursuant to any optional
sinking fund provisions, be redeemed by the Corporation, and the other
detailed terms and provisions of such sinking fund; (viii) the date, if any,
after which and the price or prices at which the Debt Securities may, pursuant
to any optional redemption provisions, be redeemed at the option of the
Corporation or of the Holder thereof and the other detailed terms and
provisions of such optional redemption; (ix) the currency or currencies of
denomination and payment; (x) if the currency or currencies of payment are at
the Corporation's or Holder's election, the manner in which such election may
be made; (xi) the application of defeasance provisions to the Debt Securities;
(xii) any additional restrictive covenants included for the benefit of Holders
of the Debt Securities; (xiii) any additional Events of Default provided with
respect to the Debt Securities; and (xiv) whether the Debt Securities will be
issued in whole or in part in the form of one or more Global Securities and,
if so, the Depositary for such Global Securities. (Section 301)
Principal, premium, if any, and interest, if any, will be payable, and the
Debt Securities will be transferable, at the Place of Payment designated for
such Debt Securities, provided that payment of interest may, at the option of
the Corporation, be made by check mailed to the address of the Person entitled
thereto as it appears in the Security Register. (Sections 305, 1002)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple thereof. (Section
302) No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the Prospectus Supplement relating thereto. "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, upon the occurrence of an Event of
Default and the continuation thereof. (Section 101)
Unless otherwise indicated in the Prospectus Supplement relating to the Debt
Securities, the covenants contained in the Indenture and the Debt Securities
would not necessarily afford Holders of the Debt Securities protection in the
event of a highly leveraged or other transaction involving the Corporation
that may adversely affect Holders.
6
<PAGE>
RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The various restrictive provisions of the Indenture applicable to the
Corporation and its Restricted Subsidiaries do not apply to Unrestricted
Subsidiaries. The assets and indebtedness of Unrestricted Subsidiaries are not
consolidated with those of the Corporation and its Restricted Subsidiaries in
calculating Consolidated Net Tangible Assets under the Indenture and
investments by the Corporation or by its Restricted Subsidiaries in
Unrestricted Subsidiaries are excluded in computing Consolidated Net Tangible
Assets. "Unrestricted Subsidiaries" are those Subsidiaries defined as such by
the Indenture, i.e., Dayton Credit Company and certain other finance
Subsidiaries acquired or formed subsequent to the date of the Indenture,
Eighth Street Development Company, those Subsidiaries which are designated as
Unrestricted Subsidiaries by the Board of Directors from time to time pursuant
to the Indenture (in each case, unless and until designated as Restricted
Subsidiaries by the Board of Directors pursuant to the Indenture) and any
Subsidiary, a majority of the voting stock of which is owned by Unrestricted
Subsidiaries. "Restricted Subsidiaries" are all Subsidiaries other than
Unrestricted Subsidiaries. A "Wholly-owned Restricted Subsidiary" is a
Restricted Subsidiary of which all of the outstanding Funded Debt and capital
stock (except directors' qualifying shares) is owned by the Corporation and
its other Wholly-owned Restricted Subsidiaries. (Section 101)
An Unrestricted Subsidiary may not be designated a Restricted Subsidiary
unless the Corporation would be permitted immediately thereafter to incur
additional Secured Funded Debt and Attributable Debt under the terms of the
Indenture. (Section 1009(a))
RESTRICTIONS ON SECURED FUNDED DEBT
The Corporation may not, and may not permit any Restricted Subsidiary to,
issue, assume, guarantee, incur or create any Secured Funded Debt without
first making effective provision whereby the Debt Securities shall be secured
equally and ratably with (or prior to) such Secured Funded Debt, unless
immediately thereafter the sum of the aggregate amount of all outstanding
Secured Funded Debt of the Corporation and its Restricted Subsidiaries
together with all Attributable Debt of the Corporation and its Restricted
Subsidiaries in respect of sale and leaseback transactions does not exceed 5%
of Consolidated Net Tangible Assets. The foregoing restriction does not
prevent (i) Secured Funded Debt of a Restricted Subsidiary owing to the
Corporation or a Wholly-owned Restricted Subsidiary, (ii) Secured Funded Debt
resulting from the Mortgage of property of the Corporation or any Restricted
Subsidiary in favor of the United States or any State or any instrumentality
thereof to secure partial, progress, advance or other payments, (iii) Secured
Funded Debt secured by a Mortgage on property of, or on any shares of stock or
Indebtedness of, any corporation existing at the time such corporation becomes
a Subsidiary, (iv) Secured Funded Debt secured by a Mortgage on property,
shares of stock or Indebtedness existing at or incurred within 120 days of the
time of acquisition thereof (including acquisition through merger or
consolidation), purchase money Mortgages and construction Mortgages, (v)
Secured Funded Debt secured by a Mortgage incurred or assumed in connection
with an issuance of revenue bonds the interest on which is exempt from federal
income tax pursuant to Section 103(a) and related Sections of the Internal
Revenue Code of 1986, as amended, or (vi) any extension, renewal or refunding,
in whole or in part, of any Secured Funded Debt permitted under the
restrictions described in the first sentence of this paragraph or of any
Secured Funded Debt of any Restricted Subsidiary outstanding at February 2,
1985 or of any corporation outstanding at the time such corporation became a
Restricted Subsidiary. (Section 1007)
"Secured Funded Debt" means Funded Debt which is secured by a Mortgage upon
any assets of the Corporation or a Restricted Subsidiary. (Section 101)
"Funded Debt" means Indebtedness maturing more than 12 months after the time
of computation thereof, guarantees of Funded Debt or of dividends of others
(except guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the ordinary course
of business) and Funded Debt secured by a Mortgage on property of the
Corporation or any Restricted Subsidiary, whether or not assumed, and in the
case of any Subsidiary all Preferred Stock of such Subsidiary. Funded Debt
does not include
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any amount in respect of obligations under leases (or guarantees thereof),
whether or not such obligations would be included as liabilities on a
consolidated balance sheet of the Corporation and its Restricted Subsidiaries.
(Section 101)
"Attributable Debt" means (i) the balance sheet liability amount of capital
leases (capital lease obligations and current portion thereof) determined
under generally accepted accounting principles, plus (ii) the amount of future
minimum lease payments under operating leases required to be disclosed by
generally accepted accounting principles, less any amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, discounted at the average interest rate per annum
used to calculate the present value of operating lease payments for the most
recent year in the Corporation's most recent Annual Report to Shareholders.
(Section 101)
"Consolidated Net Tangible Assets" means the total amount of assets on a
consolidated balance sheet of the Corporation and its Restricted Subsidiaries
(less applicable reserves and other properly deductible items and after
excluding any investments made in Unrestricted Subsidiaries or in corporations
while they were Unrestricted Subsidiaries but which are not Subsidiaries at
the time of computation) after deducting (i) all liabilities and liability
items, including amounts in respect of obligations under leases (or guarantees
thereof) which under generally accepted accounting principles would be
included on such balance sheet, except Funded Debt, capital stock and surplus,
surplus reserves and provisions for deferred income taxes and (ii) goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles. (Section 101)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
Neither the Corporation nor any Restricted Subsidiary may enter into any
sale and leaseback transaction involving any Operating Property which has been
or is to be sold or transferred more than 120 days after the acquisition
thereof or the completion of construction and commencement of full operations
thereof, unless (a) the Corporation or such Restricted Subsidiary could create
Secured Funded Debt on such property pursuant to Section 1007 (see
"Restrictions on Secured Funded Debt" above) in an amount equal to the
Attributable Debt with respect to the sale and leaseback transaction without
equally and ratably securing the Debt Securities or (b) the Corporation,
within 120 days, applies to the retirement of its Secured Funded Debt an
amount equal to the greater of (i) the net proceeds of the sale of an
Operating Property leased pursuant to such arrangement or (ii) the fair value
of the Operating Property so leased (subject to credits for certain voluntary
retirements of Funded Debt). This restriction will not apply to any sale and
leaseback transaction (a) between the Corporation and a Restricted Subsidiary
or between Restricted Subsidiaries, or (b) involving the taking back of a
lease for a period of three years or less. (Section 1008) "Operating Property"
is defined as any retail store, warehouse or other property related to the
general retail business of the Corporation or any Subsidiary, parking
facilities, and any equipment located at or comprising a part of any such
property having a net book value in excess of .35% of Consolidated Net
Tangible Assets (which has been owned and operated by the Corporation or any
Restricted Subsidiary for more than 90 days). (Section 101)
RESTRICTIONS ON MERGER AND SALE OF ASSETS
The Corporation may consolidate with or merge into any other corporation, or
transfer substantially all its properties and assets to any Person, and any
other Person may consolidate with or merge into the Corporation, or transfer
substantially all its properties and assets to the Corporation, provided that
(i) the Person (if other than the Corporation) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
property and assets shall assume payment of the principal of, premium, if any,
and interest on the Debt Securities and the performance and observance of the
covenants of the Indenture, and (ii) except in the case of a merger or
consolidation of the Corporation and a Restricted Subsidiary, either (a) the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series shall have consented thereto or (b) immediately
thereafter under the terms of the Indenture the successor corporation would be
permitted to become liable for an additional amount of Secured Funded Debt.
(Section 801) Notwithstanding the provisions summarized in this paragraph, the
Corporation may, without complying with such provisions, sell all
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of its property and assets to another corporation if, immediately after giving
effect to such sale, such corporation is a Wholly-owned Restricted Subsidiary
of the Corporation and the Corporation would be permitted to become liable for
an additional amount of Secured Funded Debt. (Section 803)
MODIFICATION AND WAIVER
Certain modifications and amendments of the Indenture may be made by the
Corporation and the Trustee only 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 or amendment, provided that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby: (i) change the stated maturity
date of the principal of, or any installment of principal of or interest on,
any such Debt Security; (ii) reduce the principal amount of, or the interest
(or premium, if any) on, any such Debt Security (including in the case of an
Original Issue Discount Security the amount payable upon acceleration of the
Maturity thereof); (iii) change the Place of Payment where, or the coin or
currency in which, any principal or interest (or premium, if any) on any such
Debt Security is payable; (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (v)
reduce the above-stated percentage of Outstanding Debt Securities of any
series the consent of the Holders of which is necessary to modify or amend the
Indenture; or (vi) modify the foregoing requirements or reduce the percentage
of aggregate principal amount of Outstanding Debt Securities of any series
necessary for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned,
compliance by the Corporation with certain restrictive provisions of the
Indenture. (Section 1012) The Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may on behalf of the
Holders of all Debt Securities of that series waive any past default under the
Indenture with respect to that series, except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of that
series or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of that series affected. (Section 513)
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to any series of Debt
Securities as being any one of the following events: (i) default for 30 days
in any payment of interest on such series; (ii) default in any payment of
principal of (or premium, if any, on) such series when due; (iii) default in
the payment of any sinking fund installment with respect to such series when
due; (iv) default for 60 days after appropriate notice in performance of any
other covenant or warranty in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of series of Debt Securities
other than that series); (v) default under any evidence of Indebtedness for
money borrowed (including a default with respect to Debt Securities other than
that series) or under any Mortgage, indenture or instrument under which any
such Indebtedness is issued or secured (including the Indenture), which
results in acceleration of the maturity of such Indebtedness, if such
acceleration is not annulled (or if such Indebtedness is not discharged)
within 10 days after written notice as provided in the Indenture; (vi) certain
events in bankruptcy, insolvency or reorganization; or (vii) any other Event
of Default provided with respect to Debt Securities of that series. In case an
Event of Default shall occur and be continuing with respect to any series of
Debt Securities, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series may declare
the principal of such series (or, if the Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms of that series) to be due and payable. Any Event of
Default with respect to a particular series of Debt Securities may be waived
by the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of such series, except in each case a failure to pay principal
of (or premium, if any) or interest on such Debt Security or in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series
affected. (Sections 501, 502, 513)
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Reference is made to the Prospectus Supplement relating to each series of
Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture requires the Corporation to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture. (Section 1011) The Indenture provides that the Trustee may
withhold notice to the Holders of the Debt Securities of any default (except
in payment of principal (or premium, if any) or interest or any sinking fund
installment) if it considers it in the interest of the Holders of the Debt
Securities to do so. (Section 602)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the
Indenture provides that the Trustee shall be under no obligation to exercise
any of its rights or powers under the Indenture at the request, order or
direction of the Holders of the Debt Securities unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to
such provisions for indemnification and certain other rights of the Trustee,
the Indenture provides that the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series affected shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series.
(Sections 512, 603)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt
Securities of that series and unless also the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of that series
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of that series a direction inconsistent with
such request and shall have failed to institute such proceeding within 60
days. (Section 507) However, the Holder of any Debt Security will have an
absolute right to receive payment of the principal of (and premium, if any)
and interest on such Debt Security on or after the due dates expressed in such
Debt Security and to institute suit for the enforcement of any such payment.
(Section 508)
DEFEASANCE
Defeasance and Discharge. If the terms of a series of Debt Securities so
provide and the Corporation deposits or causes to be deposited with the
Trustee as trust funds in trust for the purpose money and/or Government
Obligations, as hereinafter defined, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay and discharge (i) the principal of (and
premium, if any) and each installment of principal (and premium, if any) and
interest on the Outstanding Debt Securities of such series on the Stated
Maturity of such principal or installment of principal or interest (or on the
Redemption Date of the Outstanding Debt Securities of such series if the
Corporation has elected to redeem such Outstanding Debt Securities in
accordance with Section 1102 of the Indenture), and (ii) any mandatory (or, if
applicable, optional) sinking fund payments applicable to the Outstanding Debt
Securities of such series on the day on which such payments are due and
payable, then the Indenture will cease to be of further effect with respect to
such series (except for certain obligations to compensate, reimburse and
indemnify the Trustee, to register the transfer or exchange of Debt
Securities, to replace stolen, lost or mutilated Debt Securities, to maintain
paying agencies and to hold monies for payment in trust), and the Corporation
will be deemed to have satisfied and discharged the Indenture with respect to
such series. (Section 403) In the event of any such defeasance, holders of
Debt Securities of such series would be able to look only to such trust fund
for payment of principal (and premium, if any) and interest, if any, on their
Debt Securities. The term "Government Obligations" as used herein shall mean
securities of the government which issued the currency in which the
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Debt Securities of such series are denominated and/or in which interest is
payable or of government agencies backed by the full faith and credit of such
government. (Section 101)
Under current federal income tax law, such defeasance will be treated as a
taxable exchange of the related Debt Securities for an interest in the trust.
As a consequence, each holder of such Debt Securities will 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, and
thereafter will be required to include in income a share of the income, gain
or loss of the trust, including gain or loss recognized in connection with any
substitution of collateral, as described below. Prospective investors are
urged to consult their own tax advisors as to the specific consequences of
such a defeasance.
Defeasance of Certain Covenants and Certain Events of Default. If the terms
of the Debt Securities of any series so provide, the Corporation may omit to
comply with certain restrictive covenants in Sections 801, 803 and 804
(Consolidation, Merger, Conveyance, Transfer or Lease), and Sections 1005
(Maintenance of Properties), 1006 (Payment of Taxes and Other Claims), 1007
(Restriction on the Creation of Secured Funded Debt), 1008 (Restriction on
Sale and Lease-Back Transactions) and 1009 (Restriction on Permitting
Unrestricted Subsidiaries to become Restricted Subsidiaries), and Sections
501(4), 501(5), 501(6), 501(7) and 501(8) (if Section 501(8) is specified in
the Prospectus Supplement or Prospectus Supplements relating to such Debt
Securities), as described in clauses (iv) through (vii) under "Events of
Default" above, shall not be deemed to be Events of Default under the
Indenture with respect to such series, upon the deposit with the Trustee, in
trust, of money and/or Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay and discharge (i) the principal
of (and premium, if any) and each installment of principal (and premium, if
any) and interest on the Outstanding Debt Securities of such series on the
Stated Maturity of such principal or installment of principal or interest (or
on the Redemption Date of the Outstanding Debt Securities of such series if
the Corporation has elected to redeem such Outstanding Debt Securities in
accordance with Section 1102 of the Indenture) and (ii) any mandatory (or, if
applicable, optional) sinking fund payments applicable to the Outstanding Debt
Securities of such series on the day on which such payments are due and
payable. The obligations of the Corporation under the Indenture and the Debt
Securities other than with respect to the covenants referred to above and the
Events of Default other than the Events of Default referred to above shall
remain in full force and effect. (Section 1010)
In the event the Corporation exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Debt Securities of any
series as described above and the Debt Securities of such series are declared
due and payable because of the occurrence of any Event of Default other than
Events of Default described in clauses (iv) through (vii) under "Events of
Default" above, the amount of money and/or Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities
of such series on their Stated Maturity or Redemption Date, but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Corporation
shall remain liable for such payments. (Section 1010)
Substitution of Collateral. If the terms of a series of Debt Securities so
provide, the Corporation will be permitted at any time to withdraw any money
or Government Obligations deposited pursuant to the foregoing defeasance
provisions, provided that the Corporation in substitution therefor
simultaneously deposits money and/or Government Obligations which would then
be sufficient to satisfy the Corporation's payment obligations in respect of
the Debt Securities in the manner contemplated by such defeasance provisions.
REGARDING THE TRUSTEE
The Trustee acts as trustee under the Indenture relating to the
Corporation's 9 1/4% Debentures due 2006, 9 1/2% Sinking Fund Debentures due
2016, 9 1/4% Sinking Fund Debentures due 2016, 9 7/8% Sinking Fund Debentures
due 2017, 9 5/8% Debentures due 2008, Medium-Term Notes, Series B, 9 3/4%
Notes due 1998, Medium-Term Notes, Series C, Medium-Term Notes, Series D,
Medium-Term Notes, Series E, 9 3/4% Notes due 2002, 9 7/8% Debentures due
2020, Medium-Term Notes, Series F, 10% Notes due 2000, 10% Notes due 2011,
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9.40% Notes due 2001, Medium-Term Notes, Series G, 9.70% Debentures due 2021,
9.25% Debentures due 2011, 9% Debentures due 2021, 8.60% Debentures due 2012,
Medium-Term Notes, Series H, 8 7/8% Debentures due 2022, 8.80% Debentures due
2022, 7.25% Notes due 2004, 8.50% Debentures due 2022, 6 5/8% Notes due 2003,
7 7/8% Debentures due 2023, 7.65% Debentures due 2023 and 7.5% Notes due 1999.
Roger L. Hale, a director of the Corporation, is a director of First Bank
System, Inc., which owns substantially all of the capital stock of the
Trustee.
DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Shares offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Shares. If so
indicated in the Prospectus Supplement, the terms of any such series may
differ from the terms set forth below. The description of certain provisions
of the Preferred Shares set forth below and in any Prospectus Supplement does
not purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Restated Articles of Incorporation and the
Certificate of Designation, Preferences and Rights ("Certificate of
Designation") relating to each series of the Preferred Shares.
GENERAL
Pursuant to the Corporation's Restated Articles of Incorporation, the Board
of Directors of the Corporation has the authority, without further shareholder
action, to issue from time to time a maximum of 5,000,000 shares of preferred
stock, par value $.01 per share ("Preferred Stock"), including shares issued
or reserved for issuance, in one or more series and with such terms and at
such times and for such consideration as the Board of Directors of the
Corporation may determine. The authority of the Board of Directors of the
Corporation includes the determination or fixing of the following with respect
to shares of any series thereof: (i) the number of shares and designation or
title thereof; (ii) rights as to dividends; (iii) whether and upon what terms
the shares are to be redeemable; (iv) the rights of the holders upon the
dissolution, or upon the distribution of assets, of the Corporation; (v)
whether and upon what terms the shares shall have a purchase, retirement or
sinking fund; (vi) whether and upon what terms the shares are to be
convertible; (vii) the voting rights, if any, which shall apply; and (viii)
any other preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions of such series. At
October 28, 1995, 406,246 shares of Preferred Stock were outstanding. Shares
of Preferred Stock purchased, redeemed or converted by the Corporation shall
be retired and canceled and restored to the status of authorized but unissued
shares of Preferred Stock, without designation as to series, and may
thereafter be issued.
As described under "Description of Depositary Shares," the Corporation may,
at its option, elect to offer Depositary Shares evidenced by depositary
receipts ("Depositary Receipts"), each representing a fractional interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Shares) in a share of the particular series of the Preferred
Shares issued and deposited with a Depositary (as defined below).
The Preferred Shares shall have the dividend, liquidation, redemption,
voting and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of the Preferred Shares.
Reference is made to the Prospectus Supplement relating to the particular
series of the Preferred Shares offered thereby for specific terms, including
(i) the title and liquidation preference of such Preferred Shares and the
number of shares offered; (ii) the initial public offering price at which such
Preferred Shares will be issued; (iii) the dividend rate or rates (or method
of calculation), the dividend periods, the dates on which dividends shall be
payable and whether such dividends shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence to cumulate; (iv)
any redemption or sinking fund provisions; (v) any conversion provisions; (vi)
whether the Corporation has elected to offer Depositary Shares as described
under "Description of Depositary Shares"; and (vii) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions.
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The Preferred Shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of the Preferred Shares, each series of the Preferred Shares
will rank on a parity in all respects with the outstanding shares of each
other series of the Preferred Shares and will rank senior to the Corporation's
Series B ESOP Convertible Preferred Stock and Corporation's Series A Junior
Participating Preferred Stock described below. The Preferred Shares will have
no preemptive rights to subscribe for any additional securities which may be
issued by the Corporation. Unless otherwise specified in the applicable
Prospectus Supplement, First Chicago Trust Company of New York will be the
transfer agent and registrar for the Preferred Shares and any Depositary
Shares.
DIVIDENDS
The holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation
or a duly authorized committee thereof, out of funds legally available
therefor, cash dividends at such rates and on such dates as will be set forth
in the Prospectus Supplement relating to such series. Such rates may be fixed
or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be set forth in the Prospectus
Supplement. Dividends will be payable to the holders of record as they appear
on the stock books of the Corporation on such record dates as will be fixed by
the Board of Directors of the Corporation or a duly authorized committee
thereof.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the
Board of Directors of the Corporation fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Shares for which
dividends are noncumulative ("Noncumulative Preferred Shares"), then the
holders of such series of the Preferred Shares will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Corporation will have no obligation to pay the dividend accrued
for such period, whether or not dividends on such series are declared payable
on any future dividend payment dates.
No full dividends will be declared or paid or set apart for payment on any
stock of the Corporation ranking, as to dividends, on a parity with or junior
to the Preferred Shares for any period unless full dividends on the Preferred
Shares of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment. When dividends are not paid in
full upon any series of Preferred Shares and any Preferred Stock ranking on a
parity as to dividends with the Preferred Shares, all dividends declared or
made upon Preferred Shares of each series and any Preferred Stock ranking on a
parity as to dividends with the Preferred Shares shall be declared pro rata so
that the amount of dividends declared per share on Preferred Shares of each
series and such Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share (which, in the case of Noncumulative
Preferred Shares, shall not include any accumulation in respect of unpaid
dividends for prior dividend periods) on shares of each series of the
Preferred Shares and such Preferred Stock bear to each other. Except as
provided in the preceding sentence, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, Common Stock or any other stock of the Corporation
ranking junior to the Preferred Shares as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Preferred Shares as to dividends or
upon liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with the Preferred Shares as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and upon liquidation) unless,
in each case, the full dividends on each series of the Preferred Shares shall
have been paid or declared and set aside for payment. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on any series of the Preferred Shares which may be in arrears.
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REDEMPTION
A series of the Preferred Shares may be redeemable, in whole or in part, at
the option of the Corporation, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon terms, at the times
and at the redemption prices set forth in the Prospectus Supplement relating
to such series. Preferred Shares redeemed by the Corporation will be restored
to the status of authorized but unissued shares of Preferred Stock.
The Prospectus Supplement relating to a series of the Preferred Shares which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Shares which shall be redeemed by the Corporation in
each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the Prospectus Supplement
relating to such series of the Preferred Shares. If the redemption price is
payable only from the net proceeds of the issuance of capital stock of the
Corporation, the terms of such series may provide that, if no such capital
stock shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, the applicable shares of such series of the Preferred Shares shall
automatically and mandatorily be converted into shares of the applicable
capital stock of the Corporation pursuant to conversion provisions specified
in the Prospectus Supplement relating to such series of the Preferred Shares.
If fewer than all of the outstanding shares of any series of the Preferred
Shares are to be redeemed, the number of shares to be redeemed will be
determined by the Board of Directors of the Corporation and such shares shall
be redeemed pro rata from the holders of record of such shares in proportion
to the number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any accumulation,
on Preferred Shares of any series are in arrears, no Preferred Shares of such
series shall be redeemed unless all outstanding Preferred Shares of such
series are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any Preferred Shares of such series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of Preferred
Shares of such series pursuant to a purchase or exchange offer provided such
offer is made on the same terms to all holders of such series of the Preferred
Shares.
Unless otherwise specified in the applicable Prospectus Supplement, notice
of redemption shall be given by mailing the same to each record holder of the
shares to be redeemed, not less than 40 nor more than 70 days prior to the
date fixed for redemption thereof, to the respective addresses of such holders
as the same shall appear on the stock books of the Corporation. Each such
notice shall state (i) the redemption date; (ii) the number of shares and
series of the Preferred Shares to be redeemed; (iii) the redemption price;
(iv) the place or places where certificates for such Preferred Shares are to
be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights as to such shares, if any,
shall terminate. If fewer than all shares of any series of the Preferred
Shares held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Shares called for redemption
(unless default shall be made by the Corporation in providing money for the
payment of the redemption price of the shares so called for redemption),
dividends on the Preferred Shares so called for redemption shall cease to
accrue and such shares shall no longer be deemed to be outstanding, and all
rights of the holders thereof as shareholders of the Corporation (except the
right to receive the redemption price) shall cease. Upon surrender in
accordance with such notice of the certificates representing any shares so
redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so state),
the redemption price set forth above shall be paid out of funds provided by
the Corporation. If fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
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In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, the
Corporation will comply with all applicable provisions of the Exchange Act.
CONVERSION
The Prospectus Supplement relating to a series of the Preferred Shares which
is convertible will state the terms on which shares of that series are
convertible into shares of Common Stock or a series of Preferred Stock.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of each series of the
Preferred Shares and any Preferred Stock ranking on a parity with such series
of Preferred Shares upon liquidation will be entitled to receive out of the
assets of the Corporation available for distribution to shareholders, before
any distribution of assets is made to holders of the Common Stock or any other
class or series of stock of the Corporation ranking junior to such series of
the Preferred Shares upon liquidation, liquidation distributions in the amount
set forth in the Prospectus Supplement relating to such series of the
Preferred Shares plus an amount equal to the sum of all accrued and unpaid
dividends (whether or not earned or declared) for the then current dividend
period and, if such series of the Preferred Shares is cumulative, for all
dividend periods prior thereto. Neither the sale of all or substantially all
of the property and assets of the Corporation, nor the merger or consolidation
of the Corporation into or with any other corporation nor the merger or
consolidation of any other corporation into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up. If, upon any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation available for distribution to the holders of the
Preferred Shares of any series and any other shares of stock of the
Corporation ranking as to any such distribution on a parity with such series
of the Preferred Shares shall be insufficient to pay in full all amounts to
which such holders are entitled, no such distribution shall be made on account
of any shares of any other series of the Preferred Shares or other securities
of the Corporation ranking as to any such distribution on a parity with the
Preferred Shares of such series upon such dissolution, liquidation or winding
up unless proportionate distributive amounts shall be paid on account of the
Preferred Shares of such series, ratably, in proportion to the full
distributive amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up. After
payment of the full amount of the liquidation distribution to which they are
entitled, the holders of such series of the Preferred Shares will have no
right or claim to any of the remaining assets of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Shares, or except as expressly required by
applicable law, the holders of the Preferred Shares will not be entitled to
vote. In the event the Corporation issues shares of a series of the Preferred
Shares, unless otherwise indicated in the Prospectus Supplement relating to
such series, each share will be entitled to one vote on matters on which
holders of such series are entitled to vote. However, as more fully described
under "Description of Depositary Shares," if the Corporation elects to provide
for the issuance of Depositary Shares representing fractional interests in a
share of such series of the Preferred Shares, the holders of each such
Depositary Share will, in effect, be entitled through the Depositary to such
fraction of a vote, rather than a full vote. In the case of any series of
Preferred Shares having one vote per share on matters on which holders of such
series are entitled to vote, the voting power of such series, on matters on
which holders of such series and holders of any other series of Preferred
Shares or a series of Preferred Stock are entitled to vote as a single class,
will depend on the number of shares in such series, not the aggregate
liquidation preference or initial offering price of the shares of such series
of the Preferred Shares.
So long as any Preferred Shares of any series remain outstanding, the
Corporation will not, without the consent of the holders of the outstanding
Preferred Shares of such series and outstanding shares of all series of
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Preferred Stock ranking on a parity with the Preferred Shares of such series
either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been
conferred and are then exercisable, by a vote of at least two-thirds of all
such outstanding Preferred Shares and shares of Preferred Stock voting
together as a class, given in person or by proxy, either in writing or at a
meeting, (i) authorize, create or issue, or increase the authorized or issued
amount of, any class or series of stock ranking prior to the Preferred Shares
with respect to payment of dividends or the distribution of assets on
liquidation, dissolution or winding up, or (ii) amend, alter or repeal,
whether by merger, consolidation or otherwise, the provisions of the
Corporation's Restated Articles of Incorporation or of the resolutions
contained in a Certificate of Designation for any series of the Preferred
Shares designating such series of the Preferred Shares and the preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions thereof, so as to materially and adversely affect
any right, preference, privilege or voting power of the Preferred Shares or
the holders thereof; provided, however, that any increase in the amount of the
authorized Preferred Stock or the creation and issuance of other series of
Preferred Stock, or any increase in the amount of authorized shares of any
series of Preferred Stock, in each case ranking on a parity with or junior to
the Preferred Shares with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up will not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
OUTSTANDING PREFERRED STOCK
The Corporation has established the terms of two series of Preferred Stock:
the Series A Junior Participating Preferred Stock (the "Series A Preferred
Stock") which is described more fully below in "Description of Common Stock--
Rights Agreement;" and the Series B ESOP Convertible Preferred Stock (the
"Series B Preferred Stock"). Shares of Series B Preferred Stock are the only
shares of Preferred Stock that have been issued to date. Unless otherwise
specified in the applicable Prospectus Supplement, the Preferred Shares will
rank in all respects senior to the outstanding Series B Preferred Stock. The
Common Stock of the Corporation, including the Common Stock that may be issued
as Offered Securities or upon conversion or exercise of Offered Securities,
will be subject to any prior rights of the Preferred Stock then outstanding or
thereafter issued. Therefore, the rights of the outstanding Preferred Stock,
described below, and any Preferred Stock that may be subsequently issued, may
limit the rights of the holders of the Common Stock of the Corporation. At
October 28, 1995, the Corporation had outstanding 406,246 shares of Series B
Preferred Stock.
All outstanding shares of Series B Preferred Stock are held of record by a
trustee acting on behalf of the Dayton Hudson Corporation Supplemental
Retirement, Savings, and Employee Stock Ownership Plan, or any successor to
such plan (the "Plan"). The Series B Preferred Stock provides for cumulative
quarterly dividends equal to $56.20 per annum, subject to adjustment. The
Series B Preferred Stock is subject to redemption, in whole or in part, at the
option of the Corporation at any time after January 19, 2000 at a price equal
to $864.60 per share plus accrued and unpaid dividends thereon to the date
fixed for redemption (the "Redemption Price"). In addition, the Corporation
may redeem, in whole or in part, the Series B Preferred Stock at any time
after a change in any statute, rule or regulation which has the effect of
limiting or making unavailable to the Corporation all or any of the tax
deductions for certain amounts paid on the Series B Preferred Stock at a price
equal to the higher of the Redemption Price and the per share fair market
value of the Series B Preferred Stock (determined as set forth in the
Certificate of Designation for the Series B Preferred Stock). The Corporation
shall redeem the Series B Preferred Stock in the event the Plan is terminated
or the employee stock ownership feature of the Plan is terminated or
eliminated from the Plan at a price equal to the higher of the Redemption
Price and the per share fair market value of the Series B Preferred Stock. The
Series B Preferred Stock may be redeemed in whole or in part at the option of
the holder thereof in certain circumstances related to (i) the payment by the
holder of indebtedness incurred by or for the benefit of the Plan or (ii)
distributions required to be made by the holder under the Plan.
The Series B Preferred Stock is mandatorily convertible, without any further
action on the part of the Corporation or the holder thereof, into Common Stock
at the then applicable conversion price (as defined in the
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Certificate of Designation for the Series B Preferred Stock) when record
ownership of the shares of Series B Preferred Stock is transferred to any
person other than a successor trustee under the Plan. In addition, a holder of
Series B Preferred Stock is entitled, at any time prior to the date fixed for
redemption, to convert shares of Series B Preferred Stock held by such holder
into shares of Common Stock at the then applicable conversion price. The
Series B Preferred Stock does not have preemptive rights.
In the event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of the Series B Preferred Stock are
entitled to receive out of the assets of the Corporation available for
distribution to shareholders, before any distribution is made to holders of
Common Stock, $864.60 per share, plus accrued and unpaid dividends. The
holders of Series B Preferred Stock shall be entitled to vote on all matters
submitted to a vote of the shareholders of the Corporation, voting together
with the holders of voting capital stock of the Corporation as one class. In
addition, the vote of at least two-thirds of the outstanding shares of Series
B Preferred Stock is necessary to adopt any alteration, amendment or repeal of
any provision of the Restated Articles of Incorporation or the Certificate of
Designation for the Series B Preferred Stock if such amendment, alteration or
repeal would alter or change the powers, preferences or special rights of the
shares of the Series B Preferred Stock as to affect them adversely. The vote
of a majority of the outstanding shares of Series B Preferred Stock is also
necessary for increases in the capital of the Corporation allocable to the
Common Stock if, as a result thereof, the surplus of the Corporation for
purposes of the Minnesota Business Corporation Act would be less than the
amount of dividends that would accrue on the then outstanding Series B
Preferred Stock during the following three years. Except as otherwise required
by law or set forth above, holders of Series B Preferred Stock have no special
voting rights.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Shares which will
be filed with the Commission at or prior to the time of the offering of such
series of the Preferred Shares.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full Preferred Shares. In the event such option
is exercised, the Corporation will provide for the issuance by a Depositary to
the public of Depositary Receipts evidencing Depositary Shares, each of which
will represent a fractional interest (to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Shares) in a share
of a particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Corporation and a bank or trust company selected by
the Corporation having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a Preferred Share underlying such
Depositary Share, to all the rights and preferences of the Preferred Shares
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Corporation's
expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the owner of the Depositary Shares evidenced
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thereby is entitled to delivery at such office, to or upon his order, of the
number of Preferred Shares and any money or other property represented by such
Depositary Shares. Partial Preferred Shares will not be issued. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole Preferred Shares to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of Preferred Shares thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or
to receive Depositary Shares therefor. The Corporation does not expect that
there will be any public trading market for the Preferred Shares except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record
holders of Depositary Shares relating to such Preferred Shares in proportion
to the numbers of such Depositary Shares owned by such holders on the relevant
record date. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributed shall be added to and
treated as part of the next sum received by the Depositary for distribution to
record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Corporation, sell such property and distribute the net proceeds from such
sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Corporation to holders
of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Shares held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Shares. Whenever the Corporation
redeems Preferred Shares held by the Depositary, the Depositary will redeem as
of the same redemption date the number of Depositary Shares relating to the
Preferred Shares so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Shares. Each record holder of such
Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Shares) will be entitled to instruct the
Depositary as to
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the exercise of the voting rights pertaining to the number of shares of
Preferred Shares underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of Preferred Shares
underlying such Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting Preferred Shares to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Shares.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Shares. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner
of Depositary Shares will, upon such exchange, be the same as the aggregate
tax basis of the Depositary Shares exchanged therefor, and (iii) the holding
period for the Preferred Shares in the hands of an exchanging owner of
Depositary Shares who held such Depositary Shares as a capital asset at the
time of the exchange thereof for Preferred Shares will include the period
during which such person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. A Deposit Agreement may be terminated by the Corporation or
the Depositary only if (i) all outstanding Depositary Shares relating thereto
have been redeemed or (ii) there has been a final distribution in respect of
the Preferred Shares of the relevant series in connection with any
liquidation, dissolution or winding up of the Corporation and such
distribution has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares and any redemption of the Preferred Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Corporation which are delivered to the Depositary
and which the Corporation is required to furnish to the holders of the
Preferred Shares.
Neither the Depositary nor the Corporation will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance
in good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Shares unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Shares for deposit, holders of Depositary Shares
or other persons believed to be competent and on documents believed to be
genuine.
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RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation
notice of its election to do so, and the Corporation may at any time remove
the Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
certain general terms and provisions of the Common Stock to which any
Prospectus Supplement may pertain. The description of certain provisions of
the Common Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Restated Articles of Incorporation and bylaws
and the Certificate of Designation relating to the Series A Preferred Stock.
GENERAL
The Board of Directors of the Corporation is authorized to issue a maximum
of 500,000,000 shares of Common Stock. As of October 28, 1995, 71,901,403
shares of Common Stock were issued and outstanding. Subject to any prior
rights of any Preferred Stock then outstanding, holders of the Common Stock
are entitled to receive such dividends as are declared by the Board of
Directors of the Corporation out of funds legally available therefor. Subject
to the rights, if any, of any Preferred Stock then outstanding, all voting
rights are vested in the holders of Common Stock, each share being entitled to
one vote. Subject to any prior rights of any such Preferred Stock, in the
event of liquidation, dissolution or winding up of the Corporation, holders of
shares of Common Stock are entitled to receive pro rata any assets
distributable to shareholders in respect of shares held by them. Holders of
shares of Common Stock do not have any preemptive right to subscribe for any
additional securities which may be issued by the Corporation. The outstanding
shares of Common Stock are fully paid and nonassessable, and any shares of
Common Stock issued as Offered Securities and any shares of Common Stock
issuable upon exercise of Common Stock Warrants or the conversion of Debt
Securities or Preferred Shares that are convertible into Common Stock will be
fully paid and nonassessable. The transfer agent and registrar for the Common
Stock is First Chicago Trust Company of New York. Each share of Common Stock
also includes a right to purchase certain Preferred Stock. See "Rights
Agreement" below.
ANTI-TAKEOVER PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
The Corporation's Restated Articles of Incorporation contain certain
provisions that may reduce the likelihood of a change in management or voting
control of the Corporation without the consent of the Board of Directors.
These provisions could have the effect of delaying, deterring or preventing
tender offers or takeover attempts that some or a majority of the
Corporation's shareholders might consider to be in the shareholders' best
interests, including tender offers or attempts that might result in a premium
over the market price for the Common Stock.
Fair Price Provision. Article IV of the Restated Articles of Incorporation
of the Corporation provides that certain transactions ("business
combinations") with certain beneficial owners of 10% or more of the voting
capital stock of the Corporation ("interested shareholders") require, in
addition to any affirmative vote required by law, the affirmative vote of not
less than 75% of the votes entitled to be cast by the holders of all then
outstanding shares of voting capital stock of the Corporation, voting as a
single class. Business combinations include, without limitation, any merger,
consolidation, or statutory exchange of shares of the Corporation with an
interested shareholder; any sale, lease, pledge, or other disposition to or
from an interested shareholder or the Corporation of any assets of the
Corporation or the interested shareholder, respectively, with a value equal to
or greater than 10% of the book value of the consolidated assets of the
Corporation; the adoption of any plan for the liquidation or dissolution of
the Corporation proposed by or on behalf of an interested shareholder; and any
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transaction that has the effect of increasing the proportionate share of
capital stock of the Corporation beneficially owned by an interested
shareholder. An affirmative vote by the shareholders is not required to
approve a business combination under Article IV if the business combination
has been approved by a majority of those directors who were members of the
Board of Directors prior to the time that the interested shareholder involved
in the business combination became an interested shareholder or whose election
or nomination was approved by a majority of such directors ("continuing
directors"). An affirmative vote is also not required if the business
combination meets certain conditions specified in Article IV, including,
without limitation, that certain minimum consideration be received in the
business combination by holders of capital stock of the Corporation, that the
interested shareholder not acquire any additional shares of capital stock of
the Corporation after becoming an interested shareholder (except as approved
by the continuing directors), and that a proxy or information statement
describing the proposed business combination be mailed to all holders of
capital stock of the Corporation as least 30 days prior to the consummation of
the business combination. The affirmative vote of the holders of not less than
75% of the votes entitled to be cast by the holders of then outstanding shares
of voting stock of the Corporation, voting together as a single class, is
required to amend or repeal, or adopt any provisions inconsistent with,
Article IV of the Restated Articles of Incorporation.
Preferred Stock. In addition to the Series B Preferred Stock discussed above
and the Series A Preferred Stock discussed below, the Corporation's Restated
Articles of Incorporation permit the Board of Directors to issue Preferred
Stock at any time without shareholder approval. Preferred stock is sometimes
used to discourage or make more difficult attempts to take control of a
company by means of a merger, tender offer, proxy contest or otherwise through
the issuance without shareholder approval of shares with supervoting rights or
other features that could thwart a takeover by reducing the ability of the
suitor to acquire the necessary voting shares to obtain control.
Classified Board. Pursuant to Article VI of the Restated Articles of
Incorporation, directors of the Corporation are divided into three classes and
elected for staggered terms. At each annual meeting of shareholders
approximately one third of the directors is elected to serve a three-year
term. Directors serving staggered terms can be removed from office only upon
the affirmative vote of not less than 75% of the votes entitled to be cast by
the holders of all then outstanding shares of voting stock of the Corporation,
voting together as a single class. The affirmative vote of not less than 75%
of the votes entitled to be cast by the holders of all of the outstanding
shares of voting stock of the Corporation, voting together as a single class,
is required to amend or repeal, or adopt any provisions inconsistent with,
this provision of the Restated Articles of Incorporation.
Nomination Procedures. Article VI of the Corporation's Restated Articles of
Incorporation also establishes procedures with regard to the nomination, other
than by or at the direction of the Board of Directors, of candidates for
election as directors. In general, notice must be received by the Secretary of
the Corporation not less than 60 days prior to meetings of the shareholders of
the Corporation.
Amendment of Bylaws. The Corporation's bylaws give the Board of Directors
the power to adopt, amend and repeal the bylaws, subject to limitations on
such power contained in the Minnesota Business Corporation Act and subject to
the power of the shareholders to change or repeal the bylaws.
RIGHTS AGREEMENT
Each share of the Corporation's Common Stock, including those that may be
issued as Offered Securities or upon conversion or exercise of Offered
Securities, is accompanied by one preferred share purchase right (a "Right").
Once exercisable, each Right entitles the registered holder to purchase one
one-hundredth of a share of the Series A Preferred Stock. Until a Right is
exercised, the holder of a Right, as such, will have no rights as a
shareholder of the Corporation including, without limitation, the right to
vote or receive dividends. The description and terms of the Rights are set
forth in the Amended and Restated Rights Agreement, dated as of May 27, 1992,
between the Corporation and First Chicago Trust Company of New York, as Rights
Agent.
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The Rights trade automatically with shares of Common Stock and become
exercisable only under the circumstances described below. The Rights are
designed to protect the interests of the Corporation and its shareholders
against coercive takeover tactics. The purpose of the Rights is to encourage
potential acquirors to negotiate with the Corporation's Board of Directors
prior to attempting a takeover and to give the Board leverage in negotiating
on behalf of all shareholders the terms of any proposed takeover. The Rights
may, but are not intended to, deter takeover proposals.
Shares of Series A Preferred Stock purchasable upon exercise of the Rights
will rank junior to all other series of the Corporation's Preferred Stock,
including the Preferred Shares, and will not be redeemable. Each share of
Series A Preferred Stock will, subject to the rights of senior securities of
the Corporation, including outstanding Preferred Shares, if any, be entitled
to a preferential cumulative quarterly dividend payment equal to the greater
of $5.00 per share or 100 times the quarterly dividend declared per share of
Common Stock. Upon the liquidation of the Corporation, the holders of the
Series A Preferred Stock will, subject to the rights of such senior
securities, be entitled to a preferential liquidation payment equal to the
greater of $100 per share plus all accrued and unpaid dividends or 100 times
the payment made per share of Common Stock. Finally, in the event of any
merger, consolidation, statutory share exchange or other similar transaction,
each share of Series A Preferred Stock will, subject to the rights of such
senior securities, be entitled to receive 100 times the amount received per
share of Common Stock. These rights of the Series A Preferred Stock are
protected by customary antidilution provisions. Each share of Series A
Preferred Stock will have 100 votes per share and, except as otherwise
required by law, will vote together with the Common Stock.
The purchase price for each one one-hundredth of a share of Series A
Preferred Stock is $150.00. The purchase price is subject to adjustment upon
the occurrence of certain events, including stock dividends on the Series A
Preferred Stock or issuance of warrants for, or securities convertible on
certain terms into, shares of Series A Preferred Stock. The number of Rights
outstanding and the number of shares of Series A Preferred Stock issuable upon
the exercise of the Rights are subject to adjustment in the event of a stock
split of, or a stock dividend on, Common Stock.
The Rights will become exercisable following a "distribution date." A
distribution date will occur 15 days after a person or group acquires 20% or
more of the outstanding shares of Common Stock or a person or group announces
an offer, which, if successful, would result in the acquisition of 30% or more
of the outstanding shares of Common Stock (the Board may delay the
distribution date following such an offer until the person or group actually
acquires at least 20% of the outstanding shares of Common Stock). The Rights
have certain additional features that will be triggered upon the occurrence of
specified events:
1. If a person or group acquires at least 20% of the outstanding shares
of Common Stock, the Rights permit holders of the Rights, other than such
person or group, to acquire Common Stock at 50% of market value.
2. In the event of certain business combinations involving the
Corporation or the sale of 50% or more of the assets or earning power of
the Corporation, the Rights permit holders of the Rights to purchase the
stock of the acquiror at 50% of market value.
At any time prior to the acquisition by a person or group of 20% or more of
the outstanding shares of Common Stock and in certain circumstances within 20
days after such acquisition, the Board of Directors may redeem the Rights in
whole, but not in part, at a price of $.05 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to
exercise such Rights will terminate and the only remaining right of the
holders of Rights will be to receive the Redemption Price. In addition, the
shareholders of the Corporation can, under certain circumstances, compel the
Board of Directors to redeem the Rights even if the Board of Directors
believes that a tender offer of the nature described in the next sentence is
not in the shareholders' best interests. A person making a cash tender offer
for all of the Corporation's outstanding capital stock and satisfying certain
other conditions could require a shareholders meeting to vote upon a
resolution requesting that the Board of Directors redeem the Rights to allow
the
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<PAGE>
completion of that tender offer or another cash tender offer for all of the
Corporation's capital stock at a price not less than that contained in the
original tender offer without being affected by the Rights. If the
Corporation's shareholders, by a two-thirds vote of the outstanding voting
power of the shares of the Corporation, approve such a resolution, and certain
other conditions are satisfied, the Rights must be redeemed by the Board and
would not affect the completion of the tender offer.
The Rights will expire on September 26, 1996, unless earlier redeemed by the
Corporation. The terms of the Rights may be amended by the Board of Directors
without the consent of the holders of the Rights if such amendment cures
ambiguities or corrects or supplements defective provisions or does not
adversely affect the interests of the holders of the Rights. Otherwise, the
terms of the Rights may be amended only with the consent of the holders of a
majority of the shares of Common Stock voting for or against such amendment at
a meeting of the Corporation's shareholders.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities,
Preferred Shares, Depositary Shares or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from such Debt Securities,
Preferred Shares, Depositary Shares or Common Stock. Each series of Securities
Warrants will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Corporation and a bank or
trust company, as Securities Warrant Agent, all as set forth in the Prospectus
Supplement relating to the particular issue of offered Securities Warrants.
The Securities Warrant Agent will act solely as an agent of the Corporation in
connection with the Securities Warrant Certificates and will not assume any
obligation or relationship of agency or trust for or with any holders of
Securities Warrant Certificates or beneficial owners of Securities Warrants.
Copies of the forms of Securities Warrant Agreements, including the forms of
Securities Warrant Certificates representing the Securities Warrants, are
filed as exhibits to the Registration Statement to which this Prospectus
pertains. The following summaries of certain provisions of the forms of
Securities Warrant Agreements and Securities Warrant Certificates do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Securities Warrant Agreements and
the Securities Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the currencies in which such
Securities Warrants are being offered; (iii) the designation, aggregate
principal amount, currencies, denominations and terms of the series of Debt
Securities purchasable upon exercise of such Securities Warrants; (iv) the
designation and terms of any series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and
the number of such Securities Warrants being offered with each such Debt
Security, Preferred Share, Depositary Share or share of Common Stock; (v) the
date on and after which such Securities Warrants and the related Common Stock
or series of Debt Securities, Preferred Shares or Depositary Shares will be
transferable separately; (vi) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which and currencies in which such principal amount of Debt
Securities of such series may be purchased upon such exercise; (vii) the date
on which the right to exercise such Securities Warrants shall commence and the
date (the "Expiration Date") on which such right shall expire; (viii) United
States federal income tax consequences; and (ix) any other terms of such
Securities Warrants. Securities Warrants for the purchase of Debt Securities
will be in registered form only.
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise
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<PAGE>
of such Securities Warrants and, in the case of Securities Warrants for
Preferred Shares or Depositary Shares, the designation, aggregate number and
terms of the series of Preferred Shares purchasable upon exercise of such
Securities Warrants or underlying the Depositary Shares purchasable upon
exercise of such Securities Warrants; (iii) the designation and terms of the
series of Debt Securities, Preferred Shares or Depositary Shares with which
such Securities Warrants are being offered and the number of such Securities
Warrants being offered with each such Debt Security, Preferred Share,
Depositary Share or share of Common Stock; (iv) the date on and after which
such Securities Warrants and the related Common Stock or series of Debt
Securities, Preferred Shares or Depositary Shares will be transferable
separately; (v) the number of Preferred Shares, Depositary Shares or shares of
Common Stock purchasable upon exercise of each such Securities Warrant and the
price at which such number of Preferred Shares or Depositary Shares of such
series or shares of Common Stock may be purchased upon each exercise; (vi) the
date on which the right to exercise such Securities Warrants shall commence
and the Expiration Date; (vii) United States federal income tax consequences;
and (viii) any other terms of such Securities Warrants. Securities Warrants
for the purchase of Preferred Shares, Depositary Shares or Common Stock will
be in registered form only.
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may be presented for registration of
transfer and may be exercised at the corporate trust office of the Securities
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement. Prior to the exercise of any Securities Warrant to purchase Debt
Securities, holders of such Securities Warrants will not have any of the
rights of Holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on the Debt Securities purchasable upon such exercise or to
enforce covenants in the Indenture. Prior to the exercise of any Securities
Warrants to purchase Preferred Shares, Depositary Shares or Common Stock,
holders of such Securities Warrants will not have any rights of holders of the
Preferred Shares, Depositary Shares or Common Stock purchasable upon such
exercise, including the right to receive payments of dividends, if any, on the
Preferred Shares, Depositary Shares or Common Stock purchasable upon such
exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price
as shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Shares, Depositary
Shares or Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
Securities Warrant Certificate. Securities Warrants will be deemed to have
been exercised upon receipt of payment of the exercise price, subject to the
receipt, within five business days, of the Securities Warrant Certificate
evidencing such Securities Warrants. Upon receipt of such payment and the
Securities Warrant Certificate properly completed and duly executed at the
corporate trust office of the Securities Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Corporation will, as
soon as practicable, issue and deliver the Debt Securities, Preferred Shares,
Depositary Shares or Common Stock, as the case may be, purchasable upon such
exercise. If fewer than all of the Securities Warrants represented by such
Securities Warrant Certificate are exercised, a new Securities Warrant
Certificate will be issued for the remaining amount of Securities Warrants.
The holders of Securities Warrants will be required to pay any tax or
governmental charge that may be imposed in connection with any transfer
involved in the issuance of underlying securities issued upon such exercise.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the
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<PAGE>
Securities Warrants and that do not adversely affect the interests of the
holders of the Securities Warrants. The Corporation and the Securities Warrant
Agent under a Securities Warrant Agreement may also modify or amend a
Securities Warrant Agreement and the terms of the Securities Warrants with the
consent of the holders of not less than a majority in number of the then
outstanding unexercised Securities Warrants affected thereby; provided that no
such modification or amendment that accelerates the expiration date, increases
the exercise price, reduces the majority consent requirement for any such
modification or amendment, or otherwise materially adversely affects the
rights of the holders of the Securities Warrants, may be made without the
consent of each holder affected thereby.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant are subject to adjustment in certain events, including
(i) the issuance of capital stock as a dividend or distribution on the Common
Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants
entitling them to subscribe for or purchase Common Stock within 45 days after
the date fixed for the determination of the shareholders entitled to receive
such rights or warrants, at less than the current market price (as defined in
the Warrant Agreement for such series of Common Stock Warrants); (iv) the
distribution to all holders of Common Stock of evidences of indebtedness or
assets of the Corporation (excluding certain cash dividends and distributions
described below) or rights or warrants (excluding those referred to above). In
the event that the Corporation shall distribute any rights or warrants to
acquire capital stock pursuant to clause (iii) above (the "Capital Stock
Rights"), pursuant to which separate certificates representing such Capital
Stock Rights will be distributed subsequent to the initial distribution of
such Capital Stock Rights (whether or not such distribution shall have
occurred prior to the date of the issuance of a series of Common Stock
Warrants), such subsequent distribution shall be deemed to be the distribution
of such Capital Stock Rights; provided that the Corporation may, in lieu of
making any adjustment in the exercise price of and the number of shares of
Common Stock covered by a Common Stock Warrant upon a distribution of separate
certificates representing such Capital Stock Rights, make proper provision so
that each holder of such a Common Stock Warrant who exercises such Common
Stock Warrant (or any portion thereof) (a) before the record date for such
distribution of separate certificates shall be entitled to receive upon such
exercise shares of Common Stock issued with Capital Stock Rights and (b) after
such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares
of Common Stock that such Common Stock Warrant so exercised would have
entitled the holder thereof to acquire in accordance with the terms and
provisions applicable to the Capital Stock Rights if such Common Stock Warrant
was exercised immediately prior to the record date for such distribution.
Common Stock owned by or held for the account of the Corporation or any
majority owned subsidiary shall not be deemed outstanding for the purpose of
any adjustment.
No adjustment in the exercise price of and the number of shares of Common
Stock covered by a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of
at least 1% in the exercise price then in effect; provided that any such
adjustment not so made will be carried forward and taken into account in any
subsequent adjustment; and provided further that any such adjustment not so
made shall be made no later than three years after the occurrence of the event
requiring such adjustment to be made or carried forward. Except as stated
above, the exercise price of and the number of shares of Common Stock covered
by a Common Stock Warrant will not be adjusted for the issuance of Common
Stock or any securities convertible into or exchangeable for Common Stock, or
securities carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or
conveyance to another corporation of the property and assets of the
Corporation as an entirety or substantially as an entirety, in each case as a
result of which holders of the Corporation's Common Stock shall be entitled to
receive stock, securities, other property or assets (including cash) with
respect to or in exchange for such Common Stock, the holders of the Common
Stock Warrants then outstanding will be
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<PAGE>
entitled thereafter to convert such Common Stock Warrants into the kind and
amount of shares of stock and other securities or property which they would
have received upon such reclassification, change, consolidation, merger, sale
or conveyance had such Common Stock Warrants been exercised immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of three
ways: (i) through agents, (ii) through underwriters or dealers, or (iii)
directly to one or more purchasers. The Prospectus Supplement with respect to
any of the Offered Securities will set forth the terms of the offering of such
Offered Securities, including the name or names of any underwriters or agents,
the purchase price of such Offered Securities, the proceeds to the Corporation
from such sale, any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, the initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers, and any securities exchanges on which such Offered Securities may be
listed.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If so indicated in the applicable Prospectus Supplement relating to such
Offered Securities, the Corporation will authorize dealers or other persons
acting as the Corporation's agents to solicit offers by certain institutions
to purchase Offered Securities from the Corporation pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved
by the Corporation. The obligations of any purchaser under any such contract
will not be subject to any conditions except that the purchase of the Offered
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The dealers and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against
certain civil liabilities, including liabilities under the Securities Act, or
to contributions with respect to payments which the underwriters or agents may
be required to make in respect thereof. Underwriters and agents, and
affiliates thereof, may be customers of, engage in transactions with, or
perform services for the Corporation and its affiliates in the ordinary course
of business.
All Offered Securities (except shares of Common Stock) will be new issues of
securities with no established trading market. Any underwriters to whom
Offered Securities are sold by the Corporation for public offering and sale
may make a market in such Offered Securities, but such underwriters will not
be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given concerning the liquidity of the
trading market for any Offered Securities.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for the
Corporation by Timothy R. Baer, Assistant General Counsel of the Corporation.
Mr. Baer owns or has the right to acquire a number of shares of Common Stock
which totals less than 1% of the outstanding Common Stock.
EXPERTS
The consolidated financial statements and related schedule of Dayton Hudson
Corporation and subsidiaries included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended January 28, 1995 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included or incorporated therein by reference and incorporated
herein by reference. Such financial statements are, and audited financial
statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Ernst & Young LLP
pertaining to such financial statements (to the extent covered by consents
filed with the Securities and Exchange Commission) given upon the authority of
such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee............................................... $344,830
*Legal Fees and Expenses........................................ 60,000
*Trustee Fees and Expenses...................................... 30,000
*Accounting Fees and Expenses................................... 50,000
*Blue Sky and Legal Investment Fees and Expenses................ 20,000
*Printing and Engraving Fees.................................... 80,000
*Rating Agency Fees............................................. 200,000
*Listing Fees................................................... 50,000
*Miscellaneous.................................................. 5,170
--------
Total....................................................... $840,000
========
</TABLE>
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*Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is subject to Minnesota Statutes Chapter 302A, the Minnesota
Business Corporation Act (the "Corporation Act"). Section 302A.521 of the
Corporation Act provides in substance that, unless prohibited by its articles
of incorporation or bylaws, a corporation must indemnify an officer or
director who is made or threatened to be made a party to a proceeding by
reason of his official capacity against judgments, penalties, fines,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if
certain criteria are met. These criteria, all of which must be met by the
person seeking indemnification, are (a) that such person has not been
indemnified by another organization for the same judgments, penalties, fines,
settlements and expenses; (b) that such person must have acted in good faith;
(c) that no improper personal benefit was obtained by such person and such
person satisfied certain statutory conflicts of interest provisions, if
applicable; (d) that in the case of a criminal proceeding, such person had no
reasonable cause to believe that the conduct was unlawful; and (e) that such
person must have acted in a manner he reasonably believed was in the best
interests of the corporation or, in certain limited circumstances, not opposed
to the best interests of the corporation. The determination as to eligibility
for indemnification is made by the members of the corporation's board of
directors or a committee of the board who are at the time not parties to the
proceedings under consideration, by special legal counsel, by the shareholders
who are not parties to the proceedings or by a court.
Pursuant to the terms of forms of underwriting agreements and form of
distribution agreement filed as Exhibits 1(a), 1(b), 1(c) and 1(d) to this
Registration Statement, the directors and officers of the Registrant will be
indemnified against certain civil liabilities that they may incur under the
Securities Act of 1933 in connection with this Registration Statement and the
related Prospectus and applicable Prospectus Supplement.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1(a) Form of Underwriting Agreement for Debt Securities.(1)
1(b) Form of Underwriting Agreement for Preferred Shares.
1(c) Form of Underwriting Agreement for Common Stock.
1(d) Form of Distribution Agreement.(2)
</TABLE>
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<TABLE>
<C> <S>
4(a) Restated Articles of Incorporation, Certificate of Designation,
Preferences and Rights relating to the Registrant's Series A
Junior Participating Preferred Stock and Certificate of
Designation, Preferences and Rights relating to the Registrant's
Series B ESOP Convertible Preferred Stock.(3)
4(b) Bylaws.(4)
4(c) Amended and Restated Rights Agreement, dated as of May 27, 1992,
between the Registrant and First Chicago Trust Company of New
York.(5)
4(d) Indenture dated as of February 1, 1986 between the Registrant
and First Trust National Association.(6)
4(e) First Supplemental Indenture dated as of February 7, 1991
between the Registrant and First Trust National Association.(7)
4(f) Forms of Registered Medium-Term Notes.(8)
4(g) Form of Senior Note.
4(h) Form of Certificate of Designation, Preferences and Rights of
Preferred Shares.
4(i) Form of Preferred Stock Certificate.
4(j) Form of Convertible Preferred Stock Certificate.
4(k) Form of Deposit Agreement, including form of Depositary Receipt.
4(l) Form of Debt Warrant Agreement, including form of Debt Warrant
Certificate.
4(m) Form of Preferred Shares Warrant Agreement, including form of
Preferred Shares Warrant Certificate.
4(n) Form of Common Stock Warrant Agreement, including form of Common
Stock Warrant Certificate.
4(o) Form of Common Stock Certificate.
The Registrant and certain of its consolidated subsidiaries have
outstanding certain long-term debt. None of such debt exceeds
10% of the total assets of Dayton Hudson Corporation and its
consolidated subsidiaries. Copies of instruments with respect to
long-term debt will be furnished to the Commission upon request.
5 Opinion of Assistant General Counsel of the Registrant.
12 Computations of ratios of earnings to fixed charges and ratios
of earnings to fixed charges and preferred stock dividends.
23(a) Consent of Assistant General Counsel of the Registrant (included
as part of Exhibit 5).
23(b) Consent of Ernst & Young LLP.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of First Trust National Association, as Trustee.
</TABLE>
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(1) Incorporated by reference to the same numbered Exhibit to the Registrant's
Registration Statement on Form S-3, No. 33-42364.
(2) Incorporated by reference to Exhibit 1(a) to Current Report on Form 8-K
dated January 31, 1992 (File No. 1-6049).
(3) Incorporated by reference to Exhibit 3A to the Registrant's Quarterly
Report on Form 10-K for the year ended January 30, 1993 (File No. 1-6049).
(4) Incorporated by reference to Exhibit 3 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended October 29, 1994 (File No. 1-
6049).
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<PAGE>
(5) Incorporated by reference to Exhibit 1 to Amendment to Application for
Report on Form 8 dated May 28, 1992 (File No. 1-6049).
(6) Incorporated by reference to Exhibit 4(a) to Registration Statement No.
33-10294.
(7) Incorporated by reference to Exhibit 4(a) to Current Report on Form 8-K
dated February 7, 1991 (File No. 1-6049).
(8) Incorporated by reference to Exhibits 4(a) and 4(b) to Current Report on
Form 8-K dated January 30, 1992 (File No. 1-6049).
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of 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;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit
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<PAGE>
or proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(d) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(e) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
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<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 Minneapolis and the State of Minnesota, on the 23rd
day of January, 1996.
DAYTON HUDSON CORPORATION
/s/ Douglas A. Scovanner
By___________________________________
Douglas A. Scovanner Senior Vice
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 23rd day of January, 1996 by the
following persons in the capacities indicated:
<TABLE>
<S> <C>
/s/ Bob Ulrich
- -------------------------------------------
Bob Ulrich Chairman of the Board and Chief Executive
Officer (Principal Executive Officer)
/s/ Douglas A. Scovanner
- -------------------------------------------
Douglas A. Scovanner Senior Vice President
(Principal Financial Officer)
/s/ J. A. Bogdan
- -------------------------------------------
J. A. Bogdan Controller
(Principal Accounting Officer)
</TABLE>
Rand V. Araskog
Livio De Simone
Roger A. Enrico
William W. George
Roger L. Hale A majority of the Board of
Betty Ruth Hollander Directors*
Michele J. Hooper
Mary Patterson McPherson
Solomon D. Trujillo
Robert Ulrich
John R. Walter
Stephen E. Watson
*Stephen C. Kowalke, by signing his name hereto on the 23rd day of January,
1996, does hereby sign this document on behalf of each of the above named
directors of the registrant pursuant to powers of attorney duly executed by
such persons.
/s/ Stephen C. Kowalke
_____________________________________
Stephen C. Kowalke, Attorney-in-Fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT FORM OF
NUMBER DOCUMENT DESCRIPTION FILING
------- -------------------- -------
<C> <S> <C>
1(a) Form of Underwriting Agreement for Debt Securities.
1(b) Form of Underwriting Agreement for Preferred Shares.... Electronic
Transmission
1(c) Form of Underwriting Agreement for Common Stock........ Electronic
Transmission
1(d) Form of Distribution Agreement.
4(a) Restated Articles of Incorporation, Certificate of
Designation, Preferences and Rights relating to the
Registrant's Series A Junior Participating Preferred
Stock and Certificate of Designation, Preferences and
Rights relating to the Registrant's Series B ESOP
Convertible Preferred Stock.
4(b) Bylaws.
4(c) Amended and Restated Rights Agreement, dated as of May
27, 1992, between the Registrant and First Chicago
Trust Company of New York.
4(d) Indenture dated as of February 1, 1986 between the
Registrant and First Trust National Association.
4(e) First Supplemental Indenture dated as of February 7,
1991 between the Registrant and First Trust National
Association.
4(f) Forms of Registered Medium-Term Notes.
4(g) Form of Senior Note.................................... Electronic
Transmission
4(h) Form of Certificate of Designation, Preferences and Electronic
Rights of Preferred Shares............................. Transmission
4(i) Form of Preferred Stock Certificate.................... Electronic
Transmission
4(j) Form of Convertible Preferred Stock Certificate........ Electronic
Transmission
4(k) Form of Deposit Agreement, including form of Depositary Electronic
Receipt................................................ Transmission
4(l) Form of Debt Warrant Agreement, including form of Debt Electronic
Warrant Certificate.................................... Transmission
4(m) Form of Preferred Shares Warrant Agreement, including Electronic
form of Preferred Shares Warrant Certificate........... Transmission
4(n) Form of Common Stock Warrant Agreement, including form Electronic
of Common Stock Warrant Certificate.................... Transmission
4(o) Form of Common Stock Certificate....................... Electronic
Transmission
5 Opinion of Assistant General Counsel of the Registrant. Electronic
Transmission
12 Computations of ratios of earnings to fixed charges and
ratios of earnings to fixed charges and preferred stock Electronic
dividends.............................................. Transmission
23(a) Consent of Assistant General Counsel of the Registrant
(included as part of Exhibit 5).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FORM OF
NUMBER DOCUMENT DESCRIPTION FILING
------- -------------------- -------
<C> <S> <C>
23(b) Consent of Ernst & Young LLP............................ Electronic
Transmission
24 Powers of Attorney...................................... Electronic
Transmission
25 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of First Trust National Electronic
Association, as Trustee................................. Transmission
</TABLE>
<PAGE>
Exhibit 1(b)
DAYTON HUDSON CORPORATION
[$____ DEPOSITARY SHARES
Each Representing [One Quarter] Share of]
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
(par value $.01 per share)
UNDERWRITING AGREEMENT
[Date]
<PAGE>
________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Dayton Hudson Corporation, a Minnesota corporation (the "Company"),
proposes to issue up to _________ shares of its Cumulative [Convertible]
Preferred Stock, Series __, par value $.01 per share, (the "[Convertible]
Preferred Shares"), of which __________ [Convertible] Preferred Shares would be
issued in connection with the sale of the Firm Shares (as hereinafter defined)
and up to _______ [Convertible] Preferred Shares would be issued in connection
with any sale of Additional Shares (as hereinafter defined).
[The [Convertible] Preferred Shares will, when issued, be deposited by
the Company against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by [_____________________], as depositary (the "Depositary"), under a
Deposit Agreement (the "Deposit Agreement") among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued thereunder.
Each Depositary Receipt will evidence one or more Depositary Shares (as
hereinafter defined), and each Depositary Share will represent [one-quarter] of
a [Convertible] Preferred Share.]
[The Convertible Preferred Shares are convertible by the holders
thereof into shares of common stock, par value $1.00 per share, of the Company
(the "Common Stock"), all as described in the Prospectus referred to below.]
The Company proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") _________ of the [[Convertible]
Preferred Shares] [Depositary Shares] (the "Firm Shares"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional ___________ of the [[Convertible] Preferred Shares] [Depositary
Shares] (the "Additional Shares") if and to the extent that the Representatives
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such [[Convertible] Preferred Shares] [Depositary Shares] granted to
the Underwriters in Article II hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "[Depositary] Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and
<PAGE>
the shares of Common Stock issuable upon conversion of the Convertible Preferred
Shares], which registration statement has become effective, and will promptly
file with the Commission a prospectus supplement specifically relating to the
[Convertible] Preferred Shares [and][,] [the Depositary Shares] [and the Common
Stock issuable upon conversion of the Convertible Preferred Shares] pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Act"). As used in
this Agreement, the term "Registration Statement" means such registration
statement, including exhibits, financial statements, schedules and documents
incorporated by reference therein, as amended to the date hereof. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the [Convertible] Preferred Shares [and][,]
[the Depositary Shares] [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] as filed with the Commission pursuant to such Rule
424. The term "preliminary prospectus" means any preliminary prospectus
supplement specifically relating to the [Convertible] Preferred Shares [and][,]
[the Depositary Shares] [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] together with the Basic Prospectus. Any reference
herein to any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein as of the date of
such preliminary prospectus or the Prospectus, as the case may be.
I.
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Minnesota, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Each of [_____________________] (the "Significant Subsidiaries")
has been duly organized and is a validly existing corporation under the laws of
the state of its incorporation, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
-2-
<PAGE>
(d) All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any security interests,
claims, liens or encumbrances.
(e) The authorized capital stock of the Company [,] [and] the
[Depositary] Shares [, the Depositary Receipts and the Deposit Agreement]
conform as to legal matters to the descriptions thereof contained in the
Prospectus.
[(f) The shares of Common Stock outstanding prior to the issuance of
the Convertible Preferred Shares [represented by the Depositary Shares] to be
sold by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable.]
(g) The [Convertible] Preferred Shares [, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the Deposit
Agreement,] have been duly authorized and, when the [Convertible] Preferred
Shares are issued and delivered in accordance with the terms of this Agreement,
the [Convertible] Preferred Shares will be validly issued, fully paid and non-
assessable, and the issuance of such [Convertible] Preferred Shares is not
subject to any preemptive or similar rights.
[(h) The shares of Common Stock issuable upon conversion of the
Convertible Preferred Shares have been duly authorized and reserved for issuance
upon such conversion, and, if and when the Convertible Preferred Shares are
converted into shares of Common Stock in accordance with the Certificate of
Designation, Preferences and Rights relating to the Convertible Preferred Shares
(the "Certificate of Designations"), such shares of Common Stock will be validly
issued, fully paid and non assessable, and the issuance of such shares of Common
Stock will not be subject to any preemptive or similar rights.]
[(i) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Depositary Share will represent an interest in
[one-quarter] of a validly issued, outstanding, fully paid and non-assessable
[Convertible] Preferred Share; assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.]
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
[(k) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company.]
(l) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Certificate of
Designation [, Preferences
-3-
<PAGE>
and Rights relating to the Preferred Shares (the "Certificate of Designations")]
[and the Deposit Agreement] will not contravene any provision of applicable law
or the articles of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval or authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement [,] [and]
the Certificate of Designations [and the Deposit Agreement], except such as have
been obtained under the Act and such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
[Depositary] Shares.
(m) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required.
(o) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact
-4-
<PAGE>
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph (p)
do not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares set forth in Schedule I
hereto.
[The Company hereby agrees that, without the prior written consent
of the Representatives, it will not file any registration statement with the
Commission in respect of any shares of Common Stock of the Company or offer,
sell, contract to sell or otherwise dispose of any shares of such Common Stock
or any securities convertible into or exercisable or exchangeable for such
Common Stock for a period of ______ days after the date of this Agreement, other
than (i) the Convertible Preferred Shares, (ii) the shares of Common Stock
issuable upon conversion of the Convertible Preferred Shares, (iii) any shares
of such Common Stock sold upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (iv) any shares of such
Common Stock registered, offered or issued, or options in respect of such Common
Stock granted, in connection with any employee benefit plans of the Company or
any of its subsidiaries (including employee benefit plans assumed by the Company
or any of its subsidiaries in connection with an acquisition by the Company), or
(v) any shares of such Common Stock registered, offered or issued in connection
with an acquisition by the Company.]
-5-
<PAGE>
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the [Depositary] Shares as soon
after this Agreement has been entered into as in your judgment is advisable.
The Company is further advised by you that the [Depositary] Shares are to be
offered to the public initially at $______ per [Depositary] Share (the public
offering price) plus accrued dividends, if any, and to certain dealers selected
by you at a price that represents a concession not in excess of $.____ per
[Depositary] Share under the public offering price, and that the Underwriters
may allow, and such dealers may reallow, a concession, not in excess of $.____
per [Depositary] Share, to any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of _____________________________,
_____________________, New York, New York, at 10:00 A.M., local time, on
___________, ___, or at such other time on the same or such other date, not
later than ____________, ____, as shall be designated in writing by you. The
time and date of such delivery and payment are hereinafter referred to as the
Closing Date.
Delivery of any Additional Shares shall be made, against payment
therefor in immediately available funds, at the office of
______________________, _______________, New York, New York, at 10:00 A.M.,
local time, on such date (which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor later than ten business days after
the giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Representatives to the Company of their determination,
on behalf of the Underwriters, to purchase a number, specified in said notice,
of Additional Shares, or on such other date, in any event not later than
_____________, ____, as shall be designated in writing by the Representatives.
The time and date of such delivery and payment are hereinafter referred to as
the Option Closing Date. The notice of the determination to exercise the option
to purchase Additional Shares and of the Option Closing Date may be given at any
time within 30 days after the date of this Agreement.
Payment for the Firm Shares and Additional Shares shall be made
against delivery to you on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters of
[Depositary Receipts] [certificates] evidencing the Firm Shares or Additional
Shares, as the case may be, registered in such names and in such denominations
as you shall request in writing not later than two full business days prior to
the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the [Depositary]
Shares to the Underwriters duly paid.
-6-
<PAGE>
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus, that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the [Depositary] Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a) above and to the effect that the
representations and warranties of the Company contained in this Agreement shall
be true and correct as of the Closing Date and the Company shall have performed
all of its obligations to be performed hereunder on or prior to the Closing
Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of James T.
Hale, Esq., Senior Vice President and General Counsel of the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Minnesota,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(ii) each Significant Subsidiary has been duly organized and is
validly existing as a corporation under the laws of the state of its
incorporation, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of the business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iii) all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued and
are fully paid and
-7-
<PAGE>
non-assessable, and all outstanding shares of such
capital stock are owned directly or indirectly by the Company free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the authorized capital stock of the Company [,] [and] the
[Depositary] Shares [, the Depositary Receipts and the Deposit Agreement]
conform as to legal matters to the descriptions thereof contained in the
Prospectus;
[(v) the shares of Common Stock outstanding prior to the issuance
of the Convertible Preferred Shares have been duly and validly authorized
and are issued and are fully paid and non-assessable;]
(vi) the [Convertible] Preferred Shares [, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the
Deposit Agreement,] have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, the [Convertible]
Preferred Shares will be validly issued, fully paid and non-assessable, and
the issuance of such [Convertible] Preferred Shares is not subject to any
preemptive or similar rights;
[(vii) the shares of Common Stock issuable upon conversion of
the Convertible Preferred Shares have been duly authorized and reserved for
issuance upon such conversion, and, if and when the Convertible Preferred
Shares are converted into shares of Common Stock in accordance with the
Certificate of Designations, such shares of Common Stock will be validly
issued, fully paid and non-assessable, and the issuance of such shares of
Common Stock will not be subject to any preemptive or similar rights;]
[(viii) assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in [one-quarter] of a validly issued, outstanding,
fully paid and non-assessable [Convertible] Preferred Share; assuming due
execution and delivery of the Depositary Receipts by the Depositary
pursuant to the Deposit Agreement, the Depositary Receipts will entitle the
holders thereof to the benefits provided therein and in the Deposit
Agreement;]
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
[(x) the Deposit Agreement has been duly authorized and delivered
by the Company and is a valid and binding agreement of the Company;]
(xi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement [,]
[and] the Certificate of Designations [and the Deposit Agreement] will not
contravene any provision of applicable
-8-
<PAGE>
law or the articles of incorporation
or by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval or authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement [,] [and] the Certificate of
Designations [and the Deposit Agreement], except such as have been obtained
under the Act and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
[Depositary] Shares by the Underwriters;
(xii) the statements (y) in the Basic Prospectus under
"Description of Preferred Stock" [, "Description of Depositary Shares"],
["Description of Common Stock",] and "Plan of Distribution" and (x) in the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] under "Description of
Capital Stock", ["Description of Depositary Shares"] and "Underwriters",
and (z) in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required; and
(xiv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except for financial
statements and schedules as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects with
the Exchange Act and the rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration Statement and the
Prospectus and any supplements or amendments thereto (except for financial
statements and schedules as to which such counsel need not express any
opinion) comply as to form in all material respects with the Act and the
rules and regulations of the Commission thereunder and (3) believes that
(except for financial statements and schedules as to which such counsel
need not express any belief) the Registration Statement and the Prospectus,
as amended or supplemented, if
-9-
<PAGE>
applicable, included therein at the time the
Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
____________________________, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (vi), (vii), (viii),
(ix) and (xii) [(but only as to the statements (A) in the Basic Prospectus under
"Description of Preferred Shares", ["Description of Depositary Shares"],
"Description of Common Stock" and "Plan of Distribution", and (B) in the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and[,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] under "Description of Capital
Stock", ["Description of Depositary Shares"] and "Underwriters") and clauses (2)
and (3) of (xiv) of paragraph (c) above.
With respect to subparagraph (xiv) of paragraph (c) above, James T.
Hale, Esq. may state that his opinion and belief are based on his participation
in the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to clauses
(2) and (3) of subparagraph (xiv) of paragraph (c) above, _________________ may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendments
of supplements thereto (other than the documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but are without independent check
or verification, except as specified.
(e) You shall have received on the date of this Agreement a letter
dated such date and also on the Closing Date a letter dated the Closing Date, in
each case in form and substance satisfactory to you, from Ernst & Young LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
-10-
<PAGE>
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents incorporated
therein by reference) and to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto but including documents
incorporated therein by reference) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated therein
by reference and any supplements and amendments thereto as you may reasonably
request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement,
and to file no such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the first date of the public offering
of the [Depositary] Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense (unless
the amendment or supplement is required as a result of the act or omission of
any Underwriter, in which case such Underwriter(s) shall reimburse the Company
for its reasonable expenses incurred to effect the amendment or supplement), to
the Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which [Depositary] Shares may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(d) To cooperate with the Underwriters to qualify the [Depositary]
Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all reasonable expenses
(including reasonable fees and disbursements of counsel) in connection therewith
as well as all fees payable in connection with the review (if any) of the
offering of the [Depositary] Shares by the National Association of Securities
Dealers, Inc.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending ____________, ____, that satisfies the provisions of Section 11(a) of the
Act and the rules and regulations of the Commission thereunder.
-11-
<PAGE>
[(f) To endeavor to list the [Depositary] Shares on the New York Stock
Exchange.]
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any
-12-
<PAGE>
local counsel) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by ___________________________. In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first or second paragraph
of this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
[Depositary] Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and of the Underwriters in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the [Depositary] Shares. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
-13-
<PAGE>
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the [Depositary] Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VII are several, in proportion to the respective number
of Firm Shares to be purchased by each of such Underwriters as set forth
opposite each Underwriter's name in Schedule I hereto plus any additional Firm
Shares which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Depositary Shares.
VIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i)
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<PAGE>
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the [Depositary] Shares on the terms
and in the manner contemplated in the Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
[Depositary] Shares that it or they have agreed to purchase hereunder on such
date, and the aggregate number of [Depositary] Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the [Depositary] Shares to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the [Depositary] Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of
[Depositary] Shares that any Underwriter has agreed to purchase pursuant to
Article II be increased pursuant to this Article IX by an amount in excess of
one-ninth of such number of [Depositary] Shares without the written consent of
such Underwriter. If, on the Closing Date, or the Option Closing Date, as the
case may be, any Underwriter or Underwriters shall fail or refuse to purchase
[Depository] Shares and the aggregate number of [Depositary] Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
[Depositary] Shares to be purchased on such date, and arrangements satisfactory
to you and the Company for the purchase of such [Depositary] Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date or the Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
-15-
<PAGE>
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
-16-
<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
DAYTON HUDSON CORPORATION
By
------------------------------------
Its
--------------------------------
Accepted,
-------, ----
By
---------------------------
Its
------------------------
- ------------------------------
By
---------------------------
Its
------------------------
Each acting severally on behalf
of itself and the several
Underwriters named herein.
-17-
<PAGE>
SCHEDULE I
Number of
Underwriter [Depositary] Shares
-------------------------------
Total
<PAGE>
Exhibit 1(c)
DAYTON HUDSON CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
[Date]
<PAGE>
________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Dayton Hudson Corporation, a Minnesota corporation (the "Company"),
proposes to issue up to _________ shares of its Common Stock, par value $1.00
per share (the "Common Stock"), of which __________ shares of Common Stock would
be issued in connection with the sale of the Firm Shares (as hereinafter
defined) and up to _______ shares of Common Stock would be issued in connection
with any sale of Additional Shares (as hereinafter defined).
The Company proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives") _________ of the shares of Common Stock (the "Firm Shares").
The Company also proposes to issue and sell to the several Underwriters not more
than an additional ___________ of the shares of Common Stock (the "Additional
Shares") if and to the extent that the Representatives shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of
Common Stock granted to the Underwriters in Article II hereof. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"Common Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the Common Shares, which
registration statement has become effective, and will promptly file with the
Commission a prospectus supplement specifically relating to the Common Shares
pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Act").
As used in this Agreement, the term "Registration Statement" means such
registration statement, including exhibits, financial statements, schedules and
documents incorporated by reference therein, as amended to the date hereof. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Common Shares as filed with
the Commission pursuant to such Rule 424. The term "preliminary prospectus"
means any preliminary prospectus supplement specifically relating to the Common
Shares together with the Basic Prospectus. Any reference herein to any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein as of the date of such
preliminary prospectus or the Prospectus, as the case may be.
<PAGE>
I.
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Minnesota, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Each of [_____________________] (the "Significant Subsidiaries") has
been duly organized and is a validly existing corporation under the laws of the
state of its incorporation, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any security interests,
claims, liens or encumbrances.
(e) The authorized capital stock of the Company and the Common Shares
conform as to legal matters to the descriptions thereof contained in the
Prospectus.
(f) The shares of Common Stock outstanding prior to the issuance of the
Common Shares to be sold by the Company have been duly and validly authorized
and issued and are fully paid and non-assessable.
(g) The Common Shares have been duly authorized and, when the Common Shares
are issued and delivered in accordance with the terms of this Agreement, the
Common Shares will be validly issued, fully paid and non-assessable, and the
issuance of such Common Shares is not subject to any preemptive or similar
rights.
(h) This Agreement has been duly authorized, executed and delivered by the
Company.
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<PAGE>
(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not contravene any
provision of applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval or authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, except such as have been obtained under the Act and such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Common Shares.
(j) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not described
or filed as required.
(l) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(m) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
-3-
<PAGE>
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (m) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information concerning any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares set forth in Schedule I
hereto.
The Company hereby agrees that, without the prior written consent of the
Representatives, it will not file any registration statement with the Commission
in respect of any shares of Common Stock of the Company or offer, sell, contract
to sell or otherwise dispose of any shares of such Common Stock or any
securities convertible into or exercisable or exchangeable for such Common Stock
for a period of ______ days after the date of this Agreement, other than (i) any
shares of such Common Stock sold upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof, (ii) any shares of
such Common Stock registered, offered or issued, or options in respect of such
Common Stock granted, in connection with any employee benefit plans of the
Company or any of its subsidiaries (including employee benefit plans assumed by
the Company or any of its subsidiaries in connection with an acquisition by the
Company), or (iii) any shares of such Common Stock registered, offered or issued
in connection with an acquisition by the Company.
-4-
<PAGE>
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Common Shares as soon after
this Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Common Shares are to be offered to
the public initially at $______ per Common Share (the public offering price)
plus accrued dividends, if any, and to certain dealers selected by you at a
price that represents a concession not in excess of $_____ per Common Share
under the public offering price, and that the Underwriters may allow, and such
dealers may reallow, a concession, not in excess of $.____ per Common Share, to
any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of _____________________________,
_____________________, New York, New York, at 10:00 A.M., local time, on
___________, ___, or at such other time on the same or such other date, not
later than ____________, ____, as shall be designated in writing by you. The
time and date of such delivery and payment are hereinafter referred to as the
Closing Date.
Delivery of any Additional Shares shall be made, against payment therefor
in immediately available funds, at the office of ______________________,
_______________, New York, New York, at 10:00 A.M., local time, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from the
Representatives to the Company of their determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Shares, or on such other date, in any event not later than _____________, ____,
as shall be designated in writing by the Representatives. The time and date of
such delivery and payment are hereinafter referred to as the Option Closing
Date. The notice of the determination to exercise the option to purchase
Additional Shares and of the Option Closing Date may be given at any time within
30 days after the date of this Agreement.
Payment for the Firm Shares and Additional Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of stock
certificates evidencing the Firm Shares or Additional Shares, as the case may
be, registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Common Shares to the Underwriters duly paid.
-5-
<PAGE>
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) There shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and its subsidiaries, taken as
a whole, from that set forth in the Prospectus, that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Common Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a) above and to the effect that the representations
and warranties of the Company contained in this Agreement shall be true and
correct as of the Closing Date and the Company shall have performed all of its
obligations to be performed hereunder on or prior to the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of James T.
Hale, Esq., Senior Vice President and General Counsel of the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Minnesota,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(ii) each Significant Subsidiary has been duly organized and is
validly existing as a corporation under the laws of the state of its
incorporation, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of the business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iii) all the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully
paid and
-6-
<PAGE>
non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or encumbrances;
(iv) the authorized capital stock of the Company and the Common Shares
conform as to legal matters to the descriptions thereof contained in the
Prospectus;
(v) the shares of Common Stock outstanding prior to the issuance of
the Common Shares have been duly and validly authorized and are issued and
are fully paid and non-assessable;
(vi) the Common Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, the Common Shares
will be validly issued, fully paid and non-assessable, and the issuance of
such Common Shares is not subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the articles of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval or authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as have been obtained under the Act and such as may be required by the
securities or blue sky laws of the various states in connection with the
offer and sale of the Common Shares by the Underwriters;
(ix) the statements (x) in the Basic Prospectus under "Description of
Common Stock" and "Plan of Distribution" and (y) in the prospectus
supplement specifically relating to the Common Shares under "Description of
Capital Stock" and "Underwriters", and (z) in the Registration Statement in
Item 15, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(x) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any
of its
-7-
<PAGE>
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required; and
(xi) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for financial statements
and schedules as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder,
(2) is of the opinion that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for financial statements
and schedules as to which such counsel need not express any opinion) comply
as to form in all material respects with the Act and the rules and
regulations of the Commission thereunder and (3) believes that (except for
financial statements and schedules as to which such counsel need not
express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, included therein at the time the
Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of
____________________________, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (vi), (vii) and (ix)
(but only as to the statements (A) in the Basic Prospectus under "Description of
Common Stock" and "Plan of Distribution", and (B) in the prospectus supplement
specifically relating to the Common Shares under "Description of Capital Stock"
and "Underwriters") and clauses (2) and (3) of (xi) of paragraph (c) above.
With respect to subparagraph (xi) of paragraph (c) above, James T. Hale,
Esq. may state that his opinion and belief are based on his participation in the
preparation of the Registration Statement and the Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent check
or verification, except as specified. With respect to clauses (2) and (3) of
subparagraph (xi) of paragraph (c) above, _________________ may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments of supplements
thereto (other than the documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
-8-
<PAGE>
incorporated therein by reference), but are without independent check or
verification, except as specified.
(e) You shall have received on the date of this Agreement a letter dated
such date and also on the Closing Date a letter dated the Closing Date, in each
case in form and substance satisfactory to you, from Ernst & Young LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to the Representatives on the Option
Closing Date of such documents as the Representatives may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares and other matters related to the issuance of
the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the Registration
Statement (including exhibits thereto and documents incorporated therein by
reference) and to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but including documents incorporated therein
by reference) and, during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated therein by reference and
any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement,
and to file no such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the first date of the public offering
of the Common Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense (unless
the amendment or supplement is required as the result of the act or omission of
any Underwriter, in which case such Underwriter(s) shall reimburse the Company
for its reasonable expenses incurred to effect the amendment or supplement), to
the Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which
-9-
<PAGE>
Common Shares may have been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
(d) To cooperate with the Underwriters to qualify the Common Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection therewith as well as
all fees payable in connection with the review (if any) of the offering of the
Common Shares by the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security holders as soon
as practicable an earnings statement covering the twelve-month period ending
____________, ____, that satisfies the provisions of Section 11(a) of the Act
and the rules and regulations of the Commission thereunder.
(f) To endeavor to list the Common Shares on the New York Stock Exchange.
VII.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
-10-
<PAGE>
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Underwriters and such control persons of Underwriters, such firm shall be
designated in writing by ___________________________. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such
-11-
<PAGE>
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Common Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
of the Underwriters in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Common Shares.
The relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Common Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VII are several, in proportion to the respective number
of Firm Shares to be purchased by each of such Underwriters as set forth
opposite each Underwriter's name in Schedule I hereto plus any additional Firm
Shares which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter
-12-
<PAGE>
or by or on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Common Shares.
VIII.
This Agreement shall be subject to termination in your absolute discretion,
by notice given to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Common Shares on the terms and in the manner contemplated in the
Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Common Shares to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Common Shares that any Underwriter has
agreed to purchase pursuant to Article II be increased pursuant to this Article
IX by an amount in excess of one-ninth of such number of Common Shares without
the written consent of such Underwriter. If, on the Closing Date, or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Common Shares and the aggregate number of Common Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Common Shares to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Common Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting
-13-
<PAGE>
Underwriter or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date or the Option Closing Date, as the
case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
-14-
<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
DAYTON HUDSON CORPORATION
By
----------------------------------
Its
------------------------------
Accepted, ________, ____
- ---------------------------------
By
------------------------------
Its
-----------------------------
- --------------------------------
By
------------------------------
Its
-----------------------------
Each acting severally on behalf
of itself and the several
Underwriters named herein.
-15-
<PAGE>
SCHEDULE I
Number of
Underwriter Common Shares
-------------------------
Total
-16-
<PAGE>
Exhibit 4(g)
[Face of Note]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
CUSIP NO. ___________ PRINCIPAL AMOUNT: $___________
REGISTERED NO. ___
DAYTON HUDSON CORPORATION
___% NOTES DUE ____
DAYTON HUDSON CORPORATION, a corporation duly organized and existing
under the laws of the State of Minnesota (hereinafter called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, the principal sum of ____________________________ Dollars
($___________) on _____________ 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 ___________________________ of each year
commencing _________________ at the rate of __% per annum (based upon a 360-day
year of twelve 30-day months), until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________________________ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such
<PAGE>
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 the Indenture.
Payment of interest on this Security will be made in immediately
available funds at the office or agency of the Company maintained for that
purpose in the City of Minneapolis, Minnesota, or the City of Saint Paul,
Minnesota, or, at the option of the Holder hereof, at the office or agency to be
maintained for that purpose in the Borough of Manhattan, The City of New York 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; provided, however,
that, at the option of the Company, payment of interest may be paid by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or by wire transfer to such account as may have
been designated by such Person. Payment of principal of (and premium, if any)
and interest on this Security at Maturity will be made against presentation of
this Security at the office or agency of the Company maintained for that purpose
in the City of Minneapolis, Minnesota, or the City of Saint Paul, Minnesota, or,
at the option of the Holder hereof, at the office or agency to be maintained for
that purpose in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: _________________
DAYTON HUDSON CORPORATION
By _____________________________________
[SEAL] Attest _________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
of the series designated
therein referred to in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Authorized Signature
-3-
<PAGE>
[Reverse of Note]
DAYTON HUDSON CORPORATION
__% NOTES DUE ____
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 February 1, 1986, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and First Trust National Association, 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, limited in aggregate principal amount to $___________.
[The Securities of this series are not subject to redemption prior
to _____________. The Securities will not be entitled to any sinking fund.]
If an Event of Default, as defined in the Indenture, 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.
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 shall be conclusive and binding upon such Holder and upon all
future Holders of this
-4-
<PAGE>
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
[The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness on this Security and (b) certain restrictive covenants
and certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.]
Upon due presentment for registration of transfer of this Security at
the office or agency of the Company in the City of Minneapolis, Minnesota, or
the City of Saint Paul, Minnesota, or, at the option of the Holder hereof, at
the office or agency to be maintained for that purpose in the Borough of
Manhattan, The City of New York, a new Security or Securities of this series in
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange herefor, as provided in the Indenture and subject
to the limitations provided therein and to the limitations described below,
without charge except for any tax or other governmental charge imposed in
connection therewith.
This Security is exchangeable for definitive Securities in registered
form only if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for this Security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (y) the Company in its sole discretion
determines that this Security shall be exchangeable for definitive Securities in
registered form and notifies the Trustee thereof or (z) an Event of Default with
respect to the Securities represented hereby has occurred and is continuing. If
this Security is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Securities in registered form, bearing interest at
the same rate, having the same date of issuance, redemption provisions, Stated
Maturity and other terms and of authorized denominations aggregating a like
amount.
This Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor of the Depositary or a nominee of such successor.
Except as provided above, owners of beneficial interests in this global Security
will not be entitled to receive physical delivery of Securities in definitive
form and will not be considered the Holders hereof for any purpose under the
Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed, except that in the event the Company deposits money
or Government Obligations as provided in Section 401 or 403 of the Indenture,
such payments will be made only from proceeds of such money or Government
Obligations.
-5-
<PAGE>
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian ___________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
____________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
___________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
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<PAGE>
the within Security of DAYTON HUDSON CORPORATION and does hereby irrevocably
constitute and appoint _______________ attorney to transfer the said Security on
the books of the Company, with full power of substitution in the premises.
Dated: _____________________ ________________________________________
________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
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<PAGE>
Exhibit 4(h)
DAYTON HUDSON CORPORATION
--------------------------------
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 302A.401 of the
Minnesota Business Corporation Act
--------------------------------
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
(Par Value $.01 Per Share)
--------------------------------
DAYTON HUDSON CORPORATION, a corporation organized and existing under
the laws of the State of Minnesota (the "Corporation"), HEREBY CERTIFIES that
the following resolutions were duly adopted by the Board of Directors of the
Corporation (the "Board"), pursuant to authority conferred upon the Board by the
provisions of the Restated Articles of Incorporation of the Corporation, which
authorizes the issuance of up to 5,000,000 shares of preferred stock, par value
$.01 per share, (the "Preferred Stock"):
"RESOLVED that the issuance of a series of Preferred Stock, par value
$.01 per share, of the Corporation is hereby authorized and the designation,
preferences and relative, participating, optional, and other special rights, and
qualifications, limitations and restrictions thereof, in addition to those set
forth in the Restated Articles of Incorporation of the Corporation, are hereby
fixed as follows:
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
1. Designation and Number of Shares. (a) The designation of the
series of preferred stock, par value $.01 per share, provided for herein shall
be `Cumulative [Convertible] Preferred Stock, Series ___' (hereinafter referred
to as the `Series __ Preferred Stock') and the number of authorized shares
constituting the Series __ Preferred Stock is _________. The number of
authorized shares of Series __ Preferred Stock may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate pursuant
to the provisions of the Minnesota Business Corporation Act stating that such
reduction has been so authorized, but the number of authorized shares of Series
__ Preferred Stock shall not be increased.
(b) All shares of Series __ Preferred Stock purchased, redeemed, or
converted by the Corporation shall be retired and cancelled and shall be
restored to the status of authorized
<PAGE>
but unissued shares of preferred stock, without designation as to series, and
may thereafter be issued, but not as shares of Series __ Preferred Stock.
2. Dividends. (a) Holders of shares of Series __ Preferred Stock
will be entitled to receive, when and as declared by the Board or a duly
authorized committee thereof, out of assets of the Corporation legally available
for payment, an annual cash dividend of $_____ per share, payable quarterly on
_____________, ______________, ______________ and _____________ of each year,
commencing _____________, ____. Dividends on shares of the Series __ Preferred
Stock will be cumulative from the date of initial issuance of such shares of
Series __ Preferred Stock. Dividends will be payable, in arrears, to holders of
record as they appear on the stock books of the Corporation on such record
dates, not more than 30 days nor less than 15 days preceding the payment dates
thereof, as shall be fixed by the Board or a duly authorized committee thereof.
The amount of dividends payable per share for each dividend period shall be
computed by dividing by four the $______ annual rate. The amount of dividends
payable for the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day year of twelve 30-
day months.
(b) (i) No full dividends shall be declared or paid or set apart for
payment on any stock of the Corporation ranking, as to dividends, on a parity
with or junior to Series __ Preferred Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on shares of Series __ Preferred Stock for all dividend payment periods
terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not paid in full, as aforesaid, upon the shares of
Series __ Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with Series __ Preferred Stock, all dividends declared
upon shares of Series __ Preferred Stock and any other series of preferred stock
ranking on a parity as to dividends with Series __ Preferred Stock shall be
declared pro rata so that the amount of dividends declared per share on Series
__ Preferred Stock and such other series of preferred stock shall in all cases
bear to each other the same ratio that accrued dividends per share on the shares
of Series __ Preferred Stock and such other series of preferred stock bear to
each other. Holders of shares of Series __ Preferred Stock shall not be entitled
to any dividend, whether payable in cash, property, or stock, in excess of full
cumulative dividends, as herein provided, on Series __ Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Series __ Preferred Stock which may be in
arrears.
(ii) So long as any shares of Series __ Preferred Stock are
outstanding, no dividend (other than dividends or distributions paid in shares
of, or options, warrants, or rights to subscribe for or purchase shares of, the
common stock, par value $1.00 per share, of the Corporation (the 'Common Stock')
or any other stock ranking junior to Series __ Preferred Stock as to dividends
and upon liquidation and other than as provided in paragraph (b)(i) of this
Section 2), shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or any other capital stock
of the Corporation ranking junior to or on a
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<PAGE>
parity with Series __ Preferred Stock as to dividends or upon liquidation, nor
shall the Common Stock or any other capital stock of the Corporation ranking
junior to or on a parity with Series __ Preferred Stock as to dividends or upon
liquidation be redeemed, purchased, or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to
Series __ Preferred Stock as to dividends and upon liquidation), unless, in each
case, the full cumulative dividends on all outstanding shares of Series __
Preferred Stock shall have been paid or declared and set aside for payment of
the then-current dividend payment period and all past dividend payment periods.
3. Optional Redemption. (a) The shares of Series __ Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 nor more than 60 days' prior
notice mailed to the holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided, however, that shares of
Series __ Preferred Stock shall not be redeemable prior to ______________, ____.
Subject to the foregoing, shares of Series __ Preferred Stock are redeemable at
the following redemption prices per share (expressed as a percentage of the
liquidation preference thereof), if redeemed during the 12-month period
beginning ______________ in the year indicated:
Year Price Year Price
---- ----- ---- -----
% %
and 100% if redeemed on or after ________________, ____, in each case together
with an amount equal to all dividends (whether or not earned or declared)
accrued and accumulated and unpaid to, but excluding, the date fixed for
redemption.
(b) If fewer than all of the outstanding shares of Series __ Preferred
Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and such shares shall be redeemed pro rata from the
holders of shares of Series __ Preferred Stock in proportion to the number of
such shares held by such holders (with adjustments to avoid redemption of
fractional shares).
(c) If the Corporation shall redeem shares of Series __ Preferred
Stock, notice of such redemption shall be mailed or caused to be mailed by the
Corporation by first class mail, postage prepaid, to each holder of the shares
to be redeemed, at such holder's address as the same appears on the stock books
of the Corporation. Such notice shall be so mailed not less than 30 nor more
than 60 days prior to the date fixed for redemption. Each such notice shall
state (i) the redemption date, (ii) the number of shares of Series __ Preferred
Stock to be redeemed, (iii) the redemption price, (iv) the place or places where
certificates for such shares of Series __ Preferred Stock are to be surrendered
for payment of the redemption price, [and] (v) that dividends on the
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<PAGE>
shares to be redeemed will cease to accrue on such redemption date[, and (vi)
the date upon which the holder's conversion rights (as hereinafter defined) as
to such shares terminate]. If fewer than all shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
(d) Notwithstanding the foregoing provisions of subsection (a) of this
Section 3, if any dividends on shares of Series __ Preferred Stock are in
arrears, no shares of Series __ Preferred Stock shall be redeemed unless all
outstanding shares of Series __ Preferred Stock are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire any shares of Series __
Preferred Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series __ Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Series __ Preferred Stock.
(e) If notice of redemption has been given under subsection (c) of
this Section 3, from and after the redemption date for the shares of Series __
Preferred Stock called for redemption (unless default shall be made by the
Corporation in providing money for the payment of the redemption price of the
shares so called for redemption), dividends on the shares of Series __ Preferred
Stock so called for redemption shall cease to accrue and such shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof as
shareholders of the Corporation (except the right to receive the redemption
price) shall cease. Upon surrender in accordance with such notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board or a duly authorized committee thereof shall so require
and the notice shall so state), such shares shall be redeemed by the Corporation
at the redemption price aforesaid. In case fewer than all of the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
[4. Conversion. (a) Subject to and upon compliance with the
provisions of this Section 4, each holder of Series __ Preferred Stock shall
have the right, at each such holder's option, at any time, to convert any or all
of the shares of Series __ Preferred Stock held by each such holder into the
number of fully paid and nonassessable shares of Common Stock (calculated as to
each conversion, for the purpose of determining the amount of any cash payments
provided for under subsection (c) of this Section 4, to the nearest 1/100 of a
share of Common Stock, with 1/200 of a share of Common Stock being rounded
upward) obtained by dividing the liquidation preference of a share of Series __
Preferred Stock by the Conversion Price (as defined below) and multiplying such
resulting number by the number of shares of Series __ Preferred Stock to be
converted, and by surrender of such shares of Series __ Preferred Stock so to be
converted, such surrender to be made in the manner provided in subsection (b) of
this Section 4; provided, however, that the right to convert shares called for
redemption pursuant to Section 3 shall terminate at the close of business on the
date fixed for such redemption unless the Corporation shall default in making
payment of the amount payable upon such redemption.
-4-
<PAGE>
[The term `Applicable Price' means (i) in the event of a Fundamental
Change (as hereinafter defined) in which the holders of the Common Stock receive
only cash, the amount of cash received by a holder of one share of Common Stock
and (ii) in the event of any other Fundamental Change, the average of the
reported last sale prices for one share of the Common Stock (determined as set
forth in paragraph (d)(vi) of this Section 4) during the ten Trading Days (as
defined in paragraph (d)(vi) of this Section 4) prior to the record date for the
determination of the holders of Common Stock entitled to receive cash,
securities, property, or other assets in connection with such Fundamental
Change, or, if there is no such record date, prior to the date upon which the
holders of Common Stock shall have the right to receive such cash, securities,
property, or other assets.]
For purposes of this Section 4, the term `Common Stock' shall mean the
Common Stock of the Corporation as the same exists at the date of this
Certificate of Designations or as such stock may be constituted from time to
time, except that for purposes of subsection (e) of this Section 4, the term
'Common Stock' shall also mean and include stock of the Corporation of any
class, whether now or hereafter authorized, which shall have the right to
participate in the distribution of either earnings or assets of the Corporation
without limit as to amount or percentage.
[The term `Common Stock Fundamental Change' means any Fundamental
Change in which more than 50% (by value as determined in good faith by the
Board) of the consideration received by holders of Common Stock consists of
common stock that, for the ten Trading Days (as defined in paragraph (d)(vi) of
this Section 4) prior to such Fundamental Change, has been admitted for listing
on a national securities exchange or quoted on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System.]
The term `Conversion Price' shall mean $_____, as adjusted in
accordance with the provisions of this Section 4.
[The term `Fundamental Change' means the occurrence of any transaction
or event in connection with which all or substantially all the Common Stock
shall be exchanged for, converted into, or acquired for, or shall constitute
solely the right to receive, cash, securities, property, or other assets
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise). In the case of a plan involving more than one such transaction or
event, for purposes of adjustment of the Conversion Price, such Fundamental
Change shall be deemed to have occurred when substantially all the Common Stock
shall have been exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, such cash, securities, property, or
other assets, but the adjustment shall be based upon the consideration that the
holders of Common Stock received in the transaction or event as a result of
which more than 50% of the Common Stock shall have been exchanged for, converted
into, or acquired for, or shall constitute solely the right to receive, such
cash, securities, property, or other assets.]
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<PAGE>
[The term `Non-Stock Fundamental Change' means any Fundamental Change
other than a Common Stock Fundamental Change.]
[The term `Purchaser Stock Price' means, with respect to any Common
Stock Fundamental Change, the average of the reported last sale prices for one
share of the common stock received by holders of Common Stock in such Common
Stock Fundamental Change (determined as set forth in paragraph (d)(vi) of this
Section 4 as if such paragraph were applicable to such common stock) during the
ten Trading Days (as defined in paragraph (d)(vi) of this Section 4) prior to
the record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of Common Stock shall have the right to receive such
common stock.]
[The term `Reference Market Price' shall initially mean $__________,
and, in the event of any adjustment to the Conversion Price pursuant to
paragraphs (d)(i), (d)(ii), (d)(iii), (d)(iv) or (d)(v)of this Section 4, the
Reference Market Price shall also be adjusted so that the ratio of the Reference
Market Price to the Conversion Price after giving effect to any such adjustment
shall always be the same as the ratio of $_______ to the Conversion Price set
forth in this Certificate of Designations (without regard to any adjustment
thereto).]
(b) In order to exercise the conversion privilege, the holder of each
share of Series __ Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series __ Preferred Stock in [_________________________], appointed for such
purpose by the Corporation, with the Notice of Election to Convert on the back
of such certificate completed and signed. Unless the shares issuable on
conversion are to be issued in the same name as the name in which such share of
Series __ Preferred Stock is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's duly authorized
attorney, and by an amount sufficient to pay any transfer or similar tax.
The holders of shares of Series __ Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date between such record date and the dividend
payment date shall not be entitled to receive such dividend on such dividend
payment date) on the corresponding dividend payment date, notwithstanding the
conversion thereof or the Corporation's default in payment of the dividend due
on such dividend payment date. However, shares of Series __ Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding dividend payment date (except shares called for redemption on a
redemption date during such period) must be accompanied by payment of an amount
equal to the dividend payable on such shares on such dividend payment date. A
holder of shares of Series __ Preferred
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<PAGE>
Stock on a dividend payment record date who (or whose transferee) tenders any of
such shares for conversion into shares of Common Stock on a dividend payment
date will receive the dividend payable by the Corporation on such shares of
Series __ Preferred Stock on such date, and the converting holder need not
include payment in the amount of such dividend upon surrender of shares of
Series __ Preferred Stock for conversion. Except as provided above, the
Corporation shall make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the shares of Common
Stock issued upon such conversion.
As promptly as practicable after the surrender of the certificates for
shares of Series __ Preferred Stock as aforesaid, the Corporation shall issue
and shall deliver at the office of the conversion agent to such holder, or on
such holder's written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 4, and any fractional interest in
respect of a share of Common Stock arising upon such conversion shall be settled
as provided in subsection (c) of this Section 4.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for shares
of Series __ Preferred Stock shall have been surrendered and such notice (and,
if applicable, payment of an amount equal to the dividend payable on such
shares) received by the Corporation as aforesaid, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares represented thereby at such time on such
date, and such conversion shall be at the Conversion Price in effect at such
time on such date, unless the stock transfer books of the Corporation shall be
closed on such date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of business on the
next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such shares shall have been surrendered and such notice (and, if applicable,
payment) received by the Corporation. All shares of Common Stock delivered upon
conversion of the Series __ Preferred Stock will upon delivery be duly and
validly issued and fully paid and nonassessable, free of all liens and charges
and not subject to any preemptive rights.
(c) In connection with the conversion of any shares of Series __
Preferred Stock, no fractional shares or scrip representing fractions of shares
of Common Stock shall be issued upon conversion of Series __ Preferred Stock.
Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series __ Preferred
Stock or a fraction thereof, the Corporation shall pay to the holder of such
share of Series __ Preferred Stock or fraction thereof an amount in cash
(computed to the nearest cent, with one-half cent being rounded upward) equal to
the reported last sale price (as defined in paragraph (d)(vi) of this Section 4)
of the Common Stock on the Trading Day (as defined in paragraph (d)(vi) of this
Section 4) next preceding the day of conversion multiplied by the fraction of a
share of Common Stock represented by such fractional interest. If more than one
share of
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<PAGE>
Series __ Preferred Stock shall be surrendered for conversion at one time by the
same holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate liquidation preference
of the shares of Series __ Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y) subdivide
the outstanding Common Stock into a greater number of shares, or (z)
combine the outstanding Common Stock into a smaller number of shares, the
Conversion Price shall be adjusted so that the holder of any share of
Series __ Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock of the Corporation
which such holder would have owned or have been entitled to receive after
the happening of any of the events described above had such share been
converted immediately prior to the record date in the case of a dividend or
the effective date in the case of subdivision or combination. An
adjustment made pursuant to this paragraph (i) shall become effective
immediately after the record date in the case of a dividend, except as
provided in paragraph (ix) below, and shall become effective immediately
after the effective date in the case of a subdivision or combination.
[(ii) [Except for [list exempted issuances], in] [In] case the
Corporation shall issue rights or warrants to all holders of the Common
Stock entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share of Common
Stock (as defined for purposes of this paragraph (ii) in paragraph (vi)
below), at the record date for the determination of shareholders entitled
to receive such rights or warrants, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants plus
the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at
such current market price, and the denominator of which shall be the number
of shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such adjustment shall
be made successively whenever any such rights or warrants are issued, and
shall become effective immediately, except as provided in paragraph (ix)
below, after such record date. In determining whether any rights or
warrants entitle the holders of the Series __ Preferred Stock to subscribe
for or purchase shares of Common Stock at less than such current market
price, and in determining the aggregate offering price of such shares of
Common
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<PAGE>
Stock, there shall be taken into account any consideration received
by the Corporation for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may
be, if other than cash, to be determined by the Board.]
[(iii) In case the Corporation shall distribute to all holders
of Common Stock any shares of capital stock of the Corporation (other than
Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of the Corporation)
or rights or warrants to subscribe for or purchase any of its securities
(excluding those rights or warrants referred to in paragraph (ii) above)
(any of the foregoing being hereinafter in this paragraph (iii) called the
'Securities'), then, in each such case, unless the Corporation elects to
reserve such Securities for distribution to the holders of the Series __
Preferred Stock upon the conversion of the shares of Series __ Preferred
Stock so that any such holder converting shares of Series __ Preferred
Stock will receive upon such conversion, in addition to the shares of the
Common Stock to which such holder is entitled, the amount and kind of such
Securities which such holder would have received if such holder had,
immediately prior to the record date for the distribution of the
Securities, converted its shares of Series __ Preferred Stock into Common
Stock, the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the
numerator of which shall be the current market price per share (as defined
for purposes of this paragraph (iii) in paragraph (vi) below) of the Common
Stock on the record date mentioned above less the then fair market value
(as determined by the Board, whose determination shall, if made in good
faith, be conclusive) of the portion of the Securities so distributed
applicable to one share of Common Stock, and the denominator of which shall
be the current market price per share (as defined in paragraph (vi) below)
of the Common Stock; provided, however, that in the event the then fair
market value (as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is equal to or greater
than the current market price per share (as defined in paragraph (vi)
below) of the Common Stock on the record date mentioned above, in lieu of
the foregoing adjustment, adequate provision shall be made so that each
holder of shares of Series __ Preferred Stock shall have the right to
receive the amount and kind of Securities such holder would have received
had such holder converted each such share of Series __ Preferred Stock
immediately prior to the record date for the distribution of the
Securities. Such adjustment shall become effective immediately, except as
provided in paragraph (ix) below, after the record date for the
determination of shareholders entitled to receive such distribution.]
[(iv) In the event that the rights issued under the Amended and
Restated Rights Agreement dated as of May 27, 1992 (the "Rights Agreement")
become exercisable and the holders thereof are entitled to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share of Common Stock (as defined for purposes of this
paragraph (iv) in paragraph
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<PAGE>
(vi) below), the Conversion Price in effect immediately prior to the
Distribution Date (as defined in the Rights Agreement) shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Distribution Date by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on the Distribution Date plus the number of shares of
Common Stock which the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at such current market
price, and the denominator of which shall be the number of shares of Common
Stock outstanding on the Distribution Date plus the number of additional
shares of Common Stock receivable upon exercise of the rights. In
determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the
Corporation for such rights plus the exercise price thereof, the value of
such consideration or exercise price, as the case may be, if other than
cash, to be determined by the Board.]
[(v) If, pursuant to paragraph (ii), (iii) or (iv) above, the
Conversion Price at which a share of Series __ Preferred Stock is
convertible shall have been adjusted because the Corporation has declared a
dividend or made a distribution on the outstanding shares of Common Stock
in the form of any right or warrant to purchase securities of the
Corporation, or the Corporation has issued any such right or warrant, then,
upon the expiration of any such unexercised right or unexercised warrant,
the Conversion Price shall forthwith be adjusted to equal the Conversion
Price that would have applied had such right or warrant never been
declared, distributed, or issued.]
[(vi) For the purpose of any computation under paragraph (ii)
[or (iv)] above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the reported last sale prices for
the 30 consecutive Trading Days (as defined below) commencing 45 Trading
Days before the date in question. For the purpose of any computation under
paragraph (iii) above, the current market price per share of Common Stock
on any date shall be deemed to be the average of the reported last sales
prices for the ten consecutive Trading Days before the date in question.
The reported last sale price for each day (whether for purposes of
paragraph (ii) or paragraph (iii) [or paragraph (iv)]) shall be the
reported last sale price, regular way, or, in case no sale takes place on
such day, the average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange Composite
Tape or, if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the National
Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ('NASDAQ') or, if the Common Stock is not
quoted on such National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked
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<PAGE>
prices for the Common Stock on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a
market in the Common Stock selected for such purpose by the Board or a
committee thereof or, if no such quotations are available, the fair market
value of the Common Stock as determined by a New York Stock Exchange member
firm regularly making a market in the Common Stock selected for such
purpose by the Board or a committee thereof. As used herein, the term
'Trading Day' with respect to Common Stock means (x) if the Common Stock is
listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which the New York Stock Exchange or
such other national securities exchange is open for business or (y) if the
Common Stock is quoted on the National Market System of NASDAQ, a day on
which trades may be made on such National Market System or (z) otherwise,
any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.]
(vii) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1%
in such price; provided, however, that any adjustments which by reason of
this paragraph (vii) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment; and provided further
that adjustment shall be required and made in accordance with the
provisions of this Section 4 (other than this paragraph (vii)) not later
than such time as may be required in order to preserve the tax free nature
of a distribution to the holders of Common Stock. All calculations under
this Section 4 shall be made to the nearest cent or to the nearest 1/100 of
a share, as the case may be, with one-half cent and 1/200 of a share,
respectively, being rounded upward. Anything in this subsection (d) to the
contrary notwithstanding, the Corporation shall be entitled to make such
reductions in the Conversion Price, in addition to those required by this
subsection (d), as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Corporation
to its shareholders shall not be taxable.
(viii) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with any conversion agent an
officers' certificate, signed by the Chairman, the President or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary, or
an Assistant Secretary of the Corporation, setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment. Promptly after delivery of
such certificate, the Corporation shall prepare a notice of such adjustment
of the Conversion Price setting forth the adjusted Conversion Price and the
date on which such adjustment becomes effective and shall mail
-11-
<PAGE>
such notice of such adjustment of the Conversion Price to the holders of
shares of Series __ Preferred Stock at their addresses as shown on the
stock books of the Corporation.
(ix) In any case in which this subsection (d) provides that an
adjustment shall become effective immediately after a record date for an
event, the Corporation may defer until the occurrence of such event (y)
issuing to the holder of any share of Series __ Preferred Stock converted
after such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment and
(z) paying to such holder any amount in cash in lieu of any fractional
share of Common Stock pursuant to subsection (c) of this Section 4.
(e) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of retained
earnings); or
[(ii) [except for [list exempted issuances],] the Corporation
shall authorize the granting to the holders of Common Stock of rights or
warrants to subscribe for or purchase any shares of any class of capital
stock of the Corporation or any other rights or warrants; or]
(iii) there shall be any reclassification or change of the
Common Stock (other than a subdivision or combination of the outstanding
Common Stock and other than a change in the par value, or from par value to
no par value, or from no par value to par value), or any consolidation,
merger, or statutory share exchange to which the Corporation is a party and
for which approval of any shareholders of the Corporation is required, or
any sale or transfer of all or substantially all the assets of the
Corporation as an entirety or any Fundamental Change; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation,
then the Corporation shall cause to be filed with the conversion agent and shall
cause to be mailed to the holders of shares of the Series __ Preferred Stock at
their addresses as shown on the stock books of the Corporation, at least 15 days
prior to the applicable date hereinafter specified, a notice stating (y) the
date on which a record is to be taken for the purpose of such dividend,
distribution, or granting of rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, or rights or warrants are to be determined, or
(z) the date on which such reclassification, change, consolidation, merger,
statutory share exchange, sale, transfer, Fundamental Change, dissolution,
liquidation, or winding
-12-
<PAGE>
up is expected to become effective and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, statutory share exchange, sale,
transfer, Fundamental Change, dissolution, liquidation, or winding up. Failure
to give such notice or any defect therein shall not affect the legality or
validity of the proceedings described in subsection (h) of this Section 4 or in
paragraph (d)(i) [, (d)(ii), (d)(iii), or (d)(iv)] of this Section 4.
(f) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of effecting
conversions of the Series __ Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of Series
__ Preferred Stock not theretofore converted. For purposes of this subsection
(f), the number of shares of Common Stock which shall be deliverable upon the
conversion of all outstanding shares of Series __ Preferred Stock shall be
computed as if at the time of computation all such outstanding shares were held
by a single holder.
Before taking any action which would cause any adjustment reducing the
Conversion Price below the then par value (if any) of the shares of Common Stock
deliverable upon conversion of the Series __ Preferred Stock, the Corporation
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Corporation may validly and legally issue fully paid
and nonassessable shares of Common Stock at such adjusted Conversion Price.
The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series __ Preferred Stock prior
to such delivery upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities which the Corporation shall be
obligated to deliver upon conversion of the Series __ Preferred Stock, the
Corporation will endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(g) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on conversions of the Series __ Preferred Stock pursuant hereto;
provided, however, that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series __ Preferred Stock to be converted and no such issue or delivery
shall be made unless and until the person requesting such issue or delivery has
paid to the Corporation the
-13-
<PAGE>
amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(h) Notwithstanding any other provision herein to the contrary, if any
of the following events occur, namely (w) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (x) any consolidation,
merger, or combination of the Corporation with or into another corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities, or other property or assets (including cash) with respect to or in
exchange for such Common Stock, [(y) any sale or conveyance of the properties
and assets of the Corporation as, or substantially as, an entirety to any other
entity as a result of which holders of Common Stock shall be entitled to receive
stock, securities, or other property or assets (including cash) with respect to
or in exchange for such Common Stock,] or (z) any Fundamental Change (including
any event referred to in the foregoing clauses [(w), (x), or (y)] that
constitutes a Fundamental Change), then appropriate provision shall be made so
that the holder of each share of Series __ Preferred Stock then outstanding
shall have the right to convert such share into the kind and amount of the
shares of stock and other securities or property or assets (including cash) that
would have been receivable upon such reclassification, change, consolidation,
merger, combination, sale, conveyance, or Fundamental Change by a holder of the
number of shares of Common Stock issuable upon conversion of such share of
Series __ Preferred Stock immediately prior to such reclassification, change,
consolidation, merger, combination, sale, conveyance, or Fundamental Change [;
provided, however, that, if the event referred to in clauses [(w) through (z)]
above constitutes a Non-Stock Fundamental Change, each holder of Series __
Preferred Stock shall be entitled, upon conversion thereof, to receive such
amount of shares of stock, other securities, or property or assets (including
cash) as is determined by the number of shares of Common Stock receivable upon
conversion at the Conversion Price as adjusted in accordance with clause (i) of
the following paragraph of this subsection (h); and provided, further, that, if
the event referred to in clauses [(w) through (z)] above constitutes a Common
Stock Fundamental Change, the foregoing provisions of this subsection (h) shall
not apply, but each holder of Series __ Preferred Stock shall be entitled, upon
conversion thereof at any time following such Common Stock Fundamental Change,
to receive such number of shares of common stock of the successor or acquiring
entity as is determined by use of the Conversion Price as adjusted in accordance
with clause (ii) of the following paragraph of this subsection (h)]. The
adjustments described in this subsection (h) shall be subject to further
adjustments as appropriate that shall be as nearly equivalent as may be
practicable to the relevant adjustments provided for in this Section 4. If, in
the case of any such consolidation, merger, combination, sale, conveyance, or
Fundamental Change, the stock or other securities and property receivable
thereupon by a holder of shares of Common Stock include shares of stock,
securities, or other property or assets (including cash) of an entity other than
the successor or acquiring entity, as the case may be, in such consolidation,
merger, combination, sale, conveyance, or Fundamental Change, then the
Corporation shall enter into an agreement with such other entity for the benefit
of
-14-
<PAGE>
the holders of Series __ Preferred Stock that shall contain such provisions
to protect the interests of such holders as the Board shall reasonably consider
necessary by reason of the foregoing.
[For purposes of calculating any adjustment to be made in connection
with the occurrence of a Fundamental Change:]
[(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price shall be deemed to be the lower of (1) the Conversion
Price in effect immediately prior to such Non-Stock Fundamental Change and
(2) the product of (a) the greater of the Applicable Price and the
Reference Market Price and (b) a fraction, the numerator of which is $_____
and the denominator of which is the amount at which one share of Series __
Preferred Stock would be redeemed by the Corporation if the redemption date
were the date of such Non-Stock Fundamental Change (such denominator being
the sum of (x) the product of the percentage (expressed as a decimal) set
forth in the table in Section 3 above or, for the period commencing
________________, ____, and ending ___________________, ____, the 12-month
period commencing _______________, ____, the 12-month period commencing
__________________, ____, and the 12-month period commencing ____________,
____, ____%, ____%, ____%, and ____%, respectively, and $_____, and (y) any
then-accrued and then-accumulated and unpaid dividends on the Series __
Preferred Stock); provided, however, that if there were accrued or
accumulated and unpaid dividends with respect to the Series __ Preferred
Stock at the time of such Non-Stock Fundamental Change ('Passed Dividends')
and if, thereafter, all (or any portion) of such Passed Dividends are paid
by the Corporation, then the Conversion Price to be used in determining the
amount of consideration to which holders of Series __ Preferred Stock who
have not converted their shares of Series __ Preferred Stock shall be
entitled upon conversion thereof shall be deemed to be the Conversion Price
that would have been used in making such determination if all (or such
portion) of such Passed Dividends had not been accrued or accumulated and
unpaid at such time; and]
[(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the shares of Series __ Preferred Stock immediately
following such Common Stock Fundamental Change shall be the Conversion
Price in effect immediately prior to such Common Stock Fundamental Change
multiplied by a fraction, the numerator of which is the Purchaser Stock
Price and the denominator of which is the Applicable Price; provided,
however, that in the event of a Common Stock Fundamental Change in which
(A) 100% by value of the consideration received by a holder of Common Stock
is common stock of the successor, acquiror, or other third party (and cash,
if any, is paid with respect to any fractional interests in such common
stock resulting from such Common Stock Fundamental Change) and (B) all of
the Common Stock of the Company shall have been exchanged for, converted
into, or acquired for [common stock of the successor, acquiror, or other
third party], the Conversion Price of the shares of Series __ Preferred
Stock immediately following such Common Stock Fundamental Change shall be
the
-15-
<PAGE>
Conversion Price in effect immediately prior to such Common Stock
Fundamental Change multiplied by a fraction, the numerator of which is one
(1) and the denominator of which is the number of shares of common stock of
the successor, acquiror, or other third party received by a holder of one
share of Common Stock as a result of such Common Stock Fundamental
Change.]]
5. Liquidation Rights. (a) Upon the dissolution, liquidation, or
winding up of the Corporation, the holders of the shares of Series __ Preferred
Stock shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its shareholders, before any payment
or distribution shall be made on the Common Stock or any other class of stock
ranking junior to Series __ Preferred Stock upon liquidation, the amount of
$_____ per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(b) Neither the sale of all or substantially all the property and
assets of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation shall be deemed to be a dissolution,
liquidation, or winding up, voluntary or involuntary, for the purposes of this
Section 5.
(c) After the payment to the holders of the shares of Series __
Preferred Stock of the full preferential amounts provided for in this Section 5,
the holders of Series __ Preferred Stock, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of Series __ Preferred Stock upon any
dissolution, liquidation, or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to subsection (a) of this Section 5, no such
distribution shall be made on account of any shares of any other series of
preferred stock or other capital stock of the Corporation ranking on a parity
with the shares of Series __ Preferred Stock upon such dissolution, liquidation,
or winding up unless proportionate distributive amounts shall be paid on account
of the shares of Series __ Preferred Stock, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation, or winding up.
(e) Subject to the rights of the holders of the shares of any series
or class or classes of stock ranking on a parity with or prior to the shares of
Series __ Preferred Stock upon liquidation, dissolution, or winding up, upon any
liquidation, dissolution, or winding up of the Corporation, after payment shall
have been made in full to the holders of the shares of Series __ Preferred Stock
as provided in this Section 5, but not prior thereto, any other series or class
or classes of stock ranking junior to the shares of Series __ Preferred Stock
upon liquidation shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any
-16-
<PAGE>
and all assets remaining to be paid or distributed, and the holders of the
shares of Series __ Preferred Stock shall not be entitled to share therein.
6. Ranking. For the purposes of this resolution, any stock of any
series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, if the holders of such series or class or classes
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation, or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of Series __ Preferred Stock;
(b) on a parity with shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share, or sinking fund
provisions, if any, be different from those of Series __ Preferred Stock, if the
holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation, or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the other,
as between the holders of such stock and the holders of shares of Series __
Preferred Stock; and
(c) junior to shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of Series __ Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation, or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such series or class or classes.
7. Priority of Series Preferred Stock. The shares of Series __
Preferred Stock will rank on a parity, both as to payment of dividends and the
distribution of assets upon liquidation, with the Corporation's
[______________________________________]. The Series __ Preferred Stock will
rank prior, both as to payment of dividends and the distribution of assets upon
liquidation, to the Common Stock and the Corporation's [Series A Junior
Participating Preferred Stock and Series B ESOP Convertible Preferred Stock].
8. Voting Rights. The shares of Series __ Preferred Stock, except
as hereinafter set forth or as otherwise from time to time required by law,
shall not have voting rights.
So long as any shares of Series ___ Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of the shares of
Series __ Preferred Stock outstanding at the time (voting separately as a class
together with all other series of Preferred Stock ranking on a parity with the
Series __ Preferred Stock either as to dividends or the distribution of assets
upon liquidation, dissolution or winding up and upon which like voting rights
have been conferred and
-17-
<PAGE>
are exercisable) given in person or by proxy, either in writing or at any
special or annual meeting called for the purpose, shall be necessary to permit,
effect or validate any one or more of the following:
(a) the authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior
to the Series __ Preferred Stock with respect to payment of dividends or
the distribution of assets on liquidation, dissolution or winding up, or
(b) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Articles of Incorporation or of the resolutions set forth in a Certificate
of Designation for the Series __ Preferred Stock and the preferences and
relative, participating, optional and other special rights and
qualifications, limitations and restrictions thereof which would materially
and adversely affect any right, preference, privilege or voting power of
the Series __ Preferred Stock or of the holders thereof; provided, however,
that any increase in the amount of authorized Preferred Stock or the
creation and issuance of other series of Preferred Stock, or any increase
in the amount of authorized shares of any series of Preferred Stock, in
each case ranking on a parity with or junior to the Series __ Preferred
Stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or
voting powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series __ Preferred Stock shall
have been redeemed or sufficient funds shall have been deposited in trust to
effect such redemption."
-18-
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by __________________, its ___________________, and
attested by ____________________, its _________________, whereby such
____________________ affirms, under penalties of perjury, that this Certificate
of Designations is the act and deed of the Corporation and that the facts stated
herein are true, this ____ day of ____________, ____.
DAYTON HUDSON CORPORATION
By _____________________________________
[Name and Office]
Attest:
________________________________
[Name and Office]
-19-
<PAGE>
Exhibit 4(i)
- --------------------------------------------------------------------------------
INCORPORATED UNDER THE LAWS OF THE
STATE OF MINNESOTA
NUMBER SHARES
SPECIMEN SPECIMEN
DAYTON HUDSON CORPORATION
SERIES __ [CUMULATIVE] PREFERRED STOCK
$.01 PAR VALUE PER SHARE
This Certifies that SPECIMEN is the owner and
----------------------------------
registered holder of SPECIMEN Shares of
-----------------------------------------
Series __ [Cumulative] Preferred Stock, $.01 par value per share, of Dayton
Hudson Corporation, subject to the terms and conditions printed on the back of
this certificate and made a part hereof transferable only on the books of the
corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. This certificate is not valid
unless countersigned by the Transfer Agent and registered by the Registrar.
IN WITNESS WHEREOF, the said corporation has caused this certificate
to be signed by its duly authorized officers and to be sealed with the
seal of the corporation this _________ day of ________________,
19_______.
COUNTERSIGNED AND REGISTERED: President
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
TRANSFER AGENT AND REGISTRAR Secretary
BY
SEAL
AUTHORIZED SIGNATURE
- --------------------------------------------------------------------------------
<PAGE>
DAYTON HUDSON CORPORATION
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
_____________________
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
__________________________________
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN -as joint tenants with right
of survivorship and not as ____________________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
</TABLE>
For value received, _____________________________________________
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
|______________________________________|________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
_________________________________________________________________________ Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
_______________________________________________________________________ Attorney
to transfer the said Shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:______________________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular,
without alteration or enlargement or
any change whatever.
<PAGE>
Exhibit 4(j)
INCORPORATED UNDER THE LAWS OF THE
STATE OF MINNESOTA
NUMBER SHARES
SPECIMEN SPECIMEN
DAYTON HUDSON CORPORATION
SERIES _ CONVERTIBLE [CUMULATIVE] PREFERRED STOCK
$.01 PAR VALUE PER SHARE
This Certifies that SPECIMEN is the owner and
---------------------------------
registered holder of SPECIMEN Shares of
---------------------------------
Series _ Convertible [Cumulative] Preferred Stock, $.01 par value per share, of
Dayton Hudson Corporation, subject to the terms and conditions printed on the
back of this certificate and made a part hereof transferable only on the books
of the corporation by the holder hereof in person or by duly authorized attorney
upon surrender of this certificate properly endorsed. This certificate is not
valid unless countersigned by the Transfer Agent and registered by the
Registrar.
IN WITNESS WHEREOF, the said corporation has caused this
certificate to be signed by its duly authorized officers and
to be sealed with the seal of the corporation this _________
day of ________________, 19_______.
COUNTERSIGNED AND REGISTERED: President
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
TRANSFER AGENT AND REGISTRAR Secretary
BY
SEAL
AUTHORIZED SIGNATURE
<PAGE>
DAYTON HUDSON CORPORATION
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
---------------------
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
----------------------
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts
to Minors Act
JT TEN -as joint tenants with right
of survivorship and not as ---------------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, __________________________________________________ hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
|
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
_________________________________________________________________________ Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
_______________________________________________________________________ Attorney
to transfer the said Shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated: __________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular, without alteration or
enlargement or any change whatever.
<PAGE>
Exhibit 4(k)
===============================================================================
DAYTON HUDSON CORPORATION,
[_______________________________], AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
DATED AS OF ___________, ____
===============================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
Certificate...................................................................1
Company.......................................................................1
Deposit Agreement.............................................................1
Depositary....................................................................1
Depositary Shares.............................................................2
Depositary's Agent............................................................2
Depositary's Office...........................................................2
Receipt.......................................................................2
record holder.................................................................2
Registrar.....................................................................2
Stock.........................................................................2
ARTICLE II
Form of Receipts; Deposit of Stock; Execution and Delivery; Transfer,
Surrender and Redemption of Receipts
Section 2.01. Form and Transfer of Receipts...................................2
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.................................................3
Section 2.03. Redemption of Stock.............................................4
Section 2.04. Registration of Transfer of Receipts............................5
Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock................................5
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts........................................6
Section 2.07. Lost Receipts, etc..............................................7
Section 2.08. Cancellation and Destruction of Surrendered Receipts............7
Section 2.09. Conversion of Stock into Common Stock...........................7
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
Section 3.01. Filing Proofs, Certificates and Other Information...............8
Section 3.02. Payment of Taxes or Other Governmental Charges..................8
Section 3.03. Warranty as to Stock............................................8
-i-
<PAGE>
ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions...............................................8
Section 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges.......................................................9
Section 4.03. Subscription Rights, Preferences or Privileges...................9
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Receipts.....................................................10
Section 4.05. Voting Rights...................................................11
Section 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc..........................................11
Section 4.07. Inspection of Reports...........................................12
Section 4.08. Lists of Receipt Holders........................................12
ARTICLE V
The Depositary, the Depositary's Agents, the Registrar and the Company
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar...........................................12
Section 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company...............13
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company.......................................13
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................14
Section 5.05. Corporate Notices and Reports...................................15
Section 5.06. Indemnification by the Company..................................15
Section 5.07. Charges and Expenses............................................15
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment.......................................................16
Section 6.02. Termination.....................................................16
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts....................................................16
Section 7.02. Exclusive Benefit of Parties....................................16
Section 7.03. Invalidity of Provisions........................................16
Section 7.04. Notices.........................................................17
Section 7.05. Depositary's Agents.............................................17
Section 7.06. Holders of Receipts Are Parties.................................17
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Section 7.07. Governing Law...................................................17
Section 7.08. Inspection of Deposit Agreement.................................18
Section 7.09. Headings........................................................18
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<PAGE>
DEPOSIT AGREEMENT dated as of
___________, ____, among DAYTON HUDSON CORPORATION,
a Minnesota corporation,
[_____________________________________],
and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Cumulative [Convertible]
Preferred Stock, Series ___, par value $.01 per share, of DAYTON HUDSON
CORPORATION with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of designation, preferences
and rights filed with the Secretary of State of Minnesota establishing the Stock
as a series of preferred stock of the Company.
"Company" shall mean Dayton Hudson Corporation, a Minnesota
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean [__________________________], and any
successor as Depositary hereunder.
<PAGE>
"Depositary Shares" shall mean Depositary Shares, each representing
[one quarter] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary in
[________________________], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's Cumulative [Convertible]
Preferred Stock, Series ___, par value $.01 per share.
ARTICLE II
Form of Receipts; Deposit of Stock;
-----------------------------------
Execution and Delivery; Transfer,
---------------------------------
Surrender and Redemption of Receipts
------------------------------------
Section 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at an office
described in the last paragraph of Section 2.02, without charge to the holder.
Upon surrender for
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<PAGE>
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may from time to time deposit shares of the
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may
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<PAGE>
be required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the number of Depositary
Shares representing the Stock so deposited and registered in such name or names
as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
_________ shares of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect
to redeem shares of Stock in accordance with the provisions of the Certificate,
if the Certificate provides for such redemption, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less than 40 nor
more than 70 days' notice of the date of such proposed redemption of Stock,
which notice shall be accompanied by a certificate from the Company stating that
such redemption of Stock is in accordance with the provisions of the
Certificate. Such notice, if given more than 50 days prior to the redemption
date, shall be in addition to the notice required to be given for redemption
pursuant to the Certificate. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus any accrued and unpaid dividends thereon, the
Depositary shall redeem the number of Depositary Shares representing such Stock.
The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Stock to be redeemed, first-class postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to
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<PAGE>
one or more such holders nor any defect in any notice to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to
other holders. Each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accumulate on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected on a pro rata basis as determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Stock so called for redemption shall cease to accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to [one quarter] of the redemption price per share paid
in respect of the shares of Stock plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Section 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the
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<PAGE>
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 2.03) upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the
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<PAGE>
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of shareholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
Section 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, and (ii) the furnishing of the Depositary with an
indemnity bond satisfactory to it.
Section 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[Section 2.09. Conversion of Stock into Common Stock. It is
understood and agreed that the Depositary Shares are not convertible into the
Common Stock, par value $1.00 per share, of the Company (the "Common Stock") or
any other securities or property of the Company. Nevertheless, as a matter of
convenience, the Company hereby agrees to accept (or to cause its conversion
agent to accept) the delivery of Receipts for the purpose of effecting
conversions of the Stock utilizing the same procedures as those provided for
delivery of Stock certificates to effect such conversions in accordance with the
terms and conditions of the Certificate; provided, however, that only whole
Depositary Shares may be so submitted for conversion. If fewer than all of the
Depositary Shares evidenced by a Receipt are to be converted, the Company shall
instruct the Depositary to issue a new Receipt or Receipts for the Depositary
Shares not to be converted. For this purpose, a holder of a Receipt or Receipts
may surrender such Receipt or Receipts to the Company at the Depositary's Office
or at such other office as the Company may from time to time designate for such
purpose, together with a duly completed and executed Notice of Conversion in the
form included in the Receipt. In all cases, the foregoing shall be conditioned
upon compliance in full by the holder of such Receipt or Receipts with the terms
and conditions of the Certificate and of this Deposit Agreement. The Company
shall instruct the Depositary to cancel each Receipt surrendered for such
conversion and to deliver to the Company any certificates for related Stock so
converted, and the Company will cancel such Stock certificates.]
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<PAGE>
ARTICLE III
Certain Obligations of Holders
------------------------------
of Receipts and the Company
---------------------------
Section 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or any part of or all the Stock
or other property represented by the Depositary Shares evidenced by such Receipt
and not theretofore sold may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such sale),
and such dividends, interest payments or other distributions or the proceeds of
any such sale may be applied to any payment of such charges or expenses, the
holder of such Receipt remaining liable for any deficiency.
Section 3.03. Warranty as to Stock. The Company hereby represents
and warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
Section 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and
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<PAGE>
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Receipts
then outstanding.
Section 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the case
of a distribution received in cash. The Company shall not make any distribution
of such securities unless the Company shall have provided an opinion of counsel
stating that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
Section 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the
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<PAGE>
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may,
if applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of any such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel stating
that such rights, preferences or privileges have been registered under the
Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or who shall be entitled to
notice of such meeting or for any other appropriate reasons.
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<PAGE>
Section 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting, and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
Section 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Stock, and (y) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such changes in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation, and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary herein notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such change in par or stated value, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
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<PAGE>
Section 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
Section 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
the Registrar and the Company
-----------------------------
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substituted registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary
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<PAGE>
will, at the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
Section 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Articles of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from, or subjected to
any penalty on account of, doing or performing any act or thing which the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
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<PAGE>
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar.
The Depositary will indemnify the Company against any liability which may arise
out of acts performed or omitted by the Depositary or its agents due to its or
their negligence or bad faith. The Depositary, the Depositary's Agents and any
Registrar may own and deal in any class of securities of the Company and its
affiliates and Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any
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<PAGE>
document or any further act, and notice thereof shall not be required hereunder.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
Section 5.05. Corporate Notices and Reports. The Company agrees that
it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Articles of Incorporation
(including the Certificate) to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense.
Section 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence, bad faith or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or the Stock pursuant to the
provisions hereof. The obligations of the Company set forth in this Section
5.06 shall survive any succession of any Depositary, Registrar or Depositary's
Agent.
Section 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all agreed upon
charges of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Shares, redemption of the Stock at
the option of the Company and all withdrawals of shares of the Stock by owners
of Depositary Shares. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case, fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and expenses
to the Company once each month or at such other intervals as the Company and the
Depositary may agree.
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<PAGE>
ARTICLE VI
Amendment and Termination
-------------------------
Section 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or transfer agent,
which shall go into effect not sooner than three months after notice thereof to
the holders of the Receipts) which shall materially and adversely alter the
rights of the holders of Receipts shall be effective unless such amendment shall
have been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Every holder of an outstanding Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
Section 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03, or (ii) there shall have been made
a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
-------------
Section 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
Section 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or
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<PAGE>
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to the Company at 777 Nicollet Mall,
Minneapolis, Minnesota 55402, to the attention of the Secretary, or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
[___________________________________], or at any other address of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
Section 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
Section 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
Section 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of the
State of _____________.
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<PAGE>
Section 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
Section 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
DAYTON HUDSON CORPORATION
By _____________________________________
Its __________________________________
Attested by
_____________________________________
[____________________________]
as Depositary
By _____________________________________
Its __________________________________
Attested by
_____________________________________
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<PAGE>
EXHIBIT A
- --------------------------------------------------------------------------------
NUMBER DEPOSITARY SHARES
- -------------------- -------------------
DR CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
- -------------------- -------------------
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __, OF
DAYTON HUDSON CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
____________________________________, AS DEPOSITARY (THE "DEPOSITARY"), HEREBY
CERTIFIES THAT
Is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)]
of one share of Cumulative [Convertible] Preferred Stock, Series ___, par value
$.01 per share, of Dayton Hudson Corporation, a Minnesota corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of , ,
(the "Deposit Agreement") between the Corporation and the Depositary. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
and shall have been countersigned manually by a Registrar or by the Depositary
as Registrar in respect of the Depositary Receipts by the manual signature of a
duly authorized officer thereof.
Dated:
COUNTERSIGNED AND
REGISTERED:
______________________,
____________________
DEPOSITARY AND REGISTRAR
By
Authorized Officer [SEAL]
- --------------------------------------------------------------------------------
<PAGE>
DAYTON HUDSON CORPORATION
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
------------------------
The following abbreviations, when used in the inscription on the face of
this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT -as tenants by the entireties Under Uniform Gifts
to Minors Act
JT TEN -as joint tenants with right ------------------------------
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, hereby
-----------------------------------------------
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
| |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
Depositary Shares
- --------------------------------------------------------------
represented by the within Receipt, and do hereby irrevocably constitute and
appoint
Attorney
- ----------------------------------------------------------------------
to transfer the said Depositary Shares on the books of the
within-named Depositary with full power of substitution in the premises.
Dated:
------------------------------- -------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Receipt in every particular, without
alteration or enlargement or any
change whatever.
<PAGE>
Exhibit 4(l)
DAYTON HUDSON CORPORATION
Form of Debt Warrant Agreement
THIS WARRANT AGREEMENT dated as of ____________, ____ between Dayton
Hudson Corporation, a Minnesota corporation (hereinafter called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), and _________________ as Warrant Agent (herein called the "Warrant
Agent").
WHEREAS, the Company has entered into an indenture (the "Indenture")
dated as of February 1, 1986 between the Company and First Trust National
Association, as trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of February 7, 1991 between the Company and the
Trustee, providing for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Debt Securities"), to
be issued in one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities, Preferred Stock or Common Stock -- [title of Debt Securities or
Preferred Stock or Common Stock being offered] (the "Offered Securities") with]
warrant certificates evidencing one or more warrants (the "Warrants" or
individually a "Warrant") representing the right to purchase [title of Debt
Securities purchasable through exercise of Warrants] (the "Warrant Securities"),
such warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
Section 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after __________________ (the "Detachable Date")] [and shall
not be
<PAGE>
separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of __________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence _______ Warrants for each [__________ principal amount] [_________
shares] of Offered Securities included in such unit.]
Section 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated _________________ and
may have such letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved thereon as
the officers of the Company executing the same may approve (execution thereof to
be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by the
Chairman of the Board, the President or a Vice President of the Company and by
the Treasurer or one of the Assistant Treasurers or the Secretary or one of the
Assistant Secretaries of the Company under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. 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 Warrant
Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Offered Securities and Warrants are not immediately detachable -- or upon
the register of the Offered Securities prior to the Detachable Date. [Prior to
the Detachable Date, the Company will, or will cause the registrar of the
Offered
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Securities to, make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date].
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
_________ aggregate principal amount of Warrant Securities (except as provided
in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
_________ principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.03(c).
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _____________________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
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ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
Section 2.01. Warrant Price. During the period from
__________________, through and including _________________, the exercise price
of each Warrant will be _________ plus [accrued amortization of the original
issue discount] [accrued interest] from __________________. During the period
from _________________, through and including _________________, the exercise
price of each Warrant will be _________ plus [accrued amortization of the
original issue discount] [accrued interest] from _________________. [In each
case, the original issue discount will be amortized at a ____% annual rate,
computed on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months]. Such purchase price of Warrant Securities
is referred to in this Agreement as the "Warrant Price". [The original issue
discount for each _________ principal amount of Warrant Securities is
_________.]
Section 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[________________] and at or before 3:30 p.m., New York City time, on
________________ [or such later date as the Company may designate, by notice to
the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent] (the
"Expiration Date"). Each Warrant not exercised at or before 3:30 p.m., New York
City time, on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement
shall cease.
Section 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by, in each case,] [by bank wire transfer] in immediately available funds the
Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate
trust office [or at ______________________], provided that such exercise is
subject to receipt within five business days of such [payment] [wire transfer]
by the Warrant Agent of the Warrant Certificate with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificates as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it [if non-dollar denominated funds -- or in such other account
designated by the Company] and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions
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of each holder of the Warrant Certificates evidencing such Warrants with respect
to delivery of the Warrant Securities to which such holder is entitled upon such
exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any,
of the Warrants remaining after such exercise, and (iv) such other information
as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture.
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the
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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 Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the mutilated, lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
Section 3.04. Merger, Consolidation, Conveyance, Transfer or Lease.
If at any time there shall be a merger, consolidation, conveyance, transfer or
lease of assets subject to Section 801 of the Indenture, then in any such event
the successor or assuming corporation referred to therein shall succeed to and
be substituted for the Company, with the same effect, subject to such Indenture,
as if it had been named herein and in the Warrant as the Company; the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name pursuant to such
Indenture, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In
any case of any such consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease complies with the provisions of this Section 3.04 and such Indenture.
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ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable date upon] surrender at the corporate trust office of the
Warrant Agent [or _________________], Warrant Certificates evidencing Warrants
may be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at _______________________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or ______________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange or registration of transfer which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificate surrendered for such exchange or registration of transfer.
Section 4.02. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and
prior] [Prior] to due presentment
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of a Warrant Certificate for registration of transfer, the Company, the Warrant
Agent and all other persons may treat the holder of a Warrant Certificate as the
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
Section 5.01. Warrant Agent. The Company hereby appoints
__________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and _____________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred without
negligence, bad faith or willful misconduct by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the reasonable costs and
expenses of defending against any claim of such liability.
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(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of Holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement
shall be deemed to prevent the Warrant Agent from acting as Trustee under any of
the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates
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authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of any of the Warrant
Certificates or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility in
case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
Section 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation,
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conservation, winding up or liquidation, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not materially adversely affect the interests of the holders
of the Warrant Certificates. The parties hereto may also modify or amend this
Agreement and the terms of the Warrant Certificates with the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrant Certificates affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Warrant Certificates the
consent of the holders of which is required for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the Warrant Certificates, may be made without the consent of each holder
affected thereby.
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Section 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
__________________________________________________, Attention: _________________
and any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Dayton Hudson Corporation, 777 Nicollet Mall,
Minneapolis, Minnesota 55402, Attention: Corporate Secretary (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of ________________.
Section 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
Section 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
Section 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
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Section 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
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IN WITNESS WHEREOF Dayton Hudson Corporation and _______________ have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
DAYTON HUDSON CORPORATION
By
--------------------------------------------
Its
----------------------------------------
Attest:
- -------------------------------------------
[WARRANT AGENT]
By
--------------------------------------------
Its
----------------------------------------
Attest:
- -------------------------------------------
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to ___________________ this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to _______________, Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DAYTON HUDSON CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON _______________
No. ____ __________ Warrants
This certifies that _________________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 3:30 p.m., New York City time, on _____________ and] on or
before 3:30 p.m., New York City time, on _________________, _________ principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of Dayton
Hudson Corporation (the "Company"), issued and to be issued under the Indenture
(as hereinafter defined), on the following basis: during the period from
__________________, through and including __________________ the exercise price
of each Warrant will be _________ plus [accrued amortization of the original
issue discount] [accrued interest] from __________________; during the period
from __________________, through and including ___________________, the exercise
price of each Warrant will be _________ plus [accrued amortization of the
original issue discount] [accrued interest] from _________________; [in each
case, the original issue discount will be amortized at a ____% annual rate,
computed on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months] (the "Warrant Price"). [The original issue
discount for each _________ principal amount of Warrant Securities is
_____________.] The holder may exercise the Warrants evidenced hereby by
<PAGE>
providing certain information set forth on the back hereof, and by paying in
full [in lawful money of the United States of America] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in immediately available funds, the Warrant
Price for each Warrant exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or
_____________________], which is, on the date hereof, at the address on the
reverse hereof, and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to
___________________ (the "Detachable Date"), the registered owner of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] the person in whose name at
the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4.01 of the
Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of __________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ____________________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture, dated as of February 1, 1986 between the Company
and First Trust National Association, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of February 7, 1991
between the Company and the Trustee (the "Indenture") and will be subject to the
terms and provisions contained in the Indenture. Copies of the Indenture and
the form of the Warrant Securities are on file at the corporate trust office of
the Trustee [and at ___________________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to __________________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with Warrants which
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<PAGE>
are immediately detachable -- Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or __________________] by the registered owner or
his assigns, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ______________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of
----------------------------.
DAYTON HUDSON CORPORATION
By:
------------------------------------
Authorized Officer
Attest:
- -------------------------------------
Countersigned:
- -------------------------------------
As Warrant Agent
By:
----------------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ________________ [or ________________], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase _________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Dayton
Hudson Corporation and represents that he has tendered payment for such Warrant
Securities in [Dollars] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Dayton Hudson
Corporation, c/o [insert name and address of Warrant Agent], in the amount of
_________ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in fully registered form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: Name
----------------------------- ------------------------------
Address
- ----------------------------------- ---------------------------
(Insert Social Security or
Other Identifying Number ---------------------------
of Holder)
A-4
<PAGE>
Signature
-----------------------------------
Signature Guaranteed (Signature must conform in
- ------------------------ all respects to name of holder
as specified on face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York, Midwest
or Pacific Stock Exchange)]
The warrants evidenced hereby may be exercised at the following address:
By hand at
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
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By mail at
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate evidencing unexercised Warrants -- complete as
appropriate.]
A-5
<PAGE>
Assignment
Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby
FOR VALUE RECEIVED ______________________________________ hereby
sells, assigns and transfers unto
______________________________ _______________________________________
(Please print name) (Please insert social security or
other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Warrant Agent with full
power of substitution in the premises.
Dated:
_________________________________________________
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by
a bank, trust company or member broker of the New
York, Midwest or Pacific Stock Exchange)
Signature Guaranteed
______________________________
A-6
<PAGE>
Exhibit 4(m)
DAYTON HUDSON CORPORATION
Form of Preferred Stock Warrant Agreement
THIS WARRANT AGREEMENT dated as of _________________ between Dayton
Hudson Corporation, a Minnesota corporation (hereinafter called the "Company,")
and ___________________________ as Warrant Agent (herein called the "Warrant
Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with other
securities -- [title of such other securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Preferred Stock or Depositary Shares purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
Section 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after __________________ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence _______ Warrants for each
[_________ principal amount] [_______ shares] of Offered Securities included in
such unit.]
Section 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in
<PAGE>
Exhibit A hereto, shall be dated _________________ and may have such letters,
numbers, or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by the Chairman of
the Board, the President or a Vice President of the Company and by the Treasurer
or one of the Assistant Treasurers or the Secretary or one of the Assistant
Secretaries of the Company under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. 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 Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Offered Securities and Warrants are not immediately detachable -- or upon
the register of the Offered Securities prior to the Detachable Date. Prior to
the Detachable Date, the Company will, or will cause the Registrar of the
Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate not exceeding _______ Warrant
Securities (except as provided in Sections 2.03(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company,
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<PAGE>
countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to _______ Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
Section 2.01. Warrant Price. During the period from
___________________, through and including _______________, the exercise price
of each Warrant will be ________. During the period from ___________________,
through and including ________________, the exercise price of each Warrant will
be ________. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price". No adjustment shall be made for any dividends
on any Warrant Securities issuable upon exercise of any Warrant.
Section 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[__________________] and at or before 3:30 p.m., New York City time, on
________________ or such later date as the Company may designate, by notice to
the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent (the "Expiration
Date"). Each Warrant not exercised at or before 3:30 p.m., New York City time,
on the Expiration Date shall become void, and all rights of the holder of the
Warrant Certificate evidencing such Warrant under this Agreement shall cease.
Section 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds] the Warrant
Price for each Warrant exercised to the Warrant Agent at its corporate trust
office [or at ____________], provided that such exercise is subject to receipt
within five business days of such [payment] [wire transfer] by the Warrant Agent
of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full of the Warrant
Price is received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a [payment]
[wire transfer] for the
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<PAGE>
exercise of Warrants is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephone advice to the Company in
writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may
be directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrant Certificates.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
Section 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights.
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the
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<PAGE>
ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and or indemnity reasonably satisfactory to the Warrant Agent and
the Company and, in the case of mutilation, upon surrender thereof to the
Warrant Agent for cancellation, then, in the absence of notice to the Company or
the Warrant Agent that such Warrant certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such holder's right to exercise the Warrants
evidenced by such holder's Warrant Certificate in the manner provided in such
holder's Warrant Certificate and in this Agreement.
Section 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the outstanding
shares of Warrant Securities; or (b) any consolidation or merger to which the
Company is party (other than a consolidation or a merger in which the Company is
the continuing corporation and which does not result in any reclassification of,
or change in, the outstanding shares of Warrant Securities issuable upon
exercise of the Warrants); or (c) any sale, conveyance or lease to another
corporation of the property of the Company as an entirety or substantially as an
entirety; then the Company, or such successor or purchasing corporation, as the
case may be, shall make appropriate provision by amendment of this Agreement or
otherwise so that the holders of the Warrants then outstanding shall have the
right at any time thereafter, upon exercise of such Warrants, to purchase the
kind and amount of shares of stock and other securities and property receivable
upon such a reclassification, change, consolidation, merger, sale, conveyance or
lease as would be received by a holder of the number of shares of Warrant
Securities issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a
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<PAGE>
consolidation, merger, sale, conveyance or lease, the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Warrants issuable hereunder which
heretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations to
deliver Warrant Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such reclassification,
change, consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance, transfer or lease complies with the provisions of this
Section 3.04.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
Section 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or _________________], Warrant Certificates evidencing Warrants
may be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at _________________________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or ________________________] for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service
charge shall be made for any exchange or registration of
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<PAGE>
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that may
be imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificate surrendered for
such exchange or registration of transfer.
Section 4.02 Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date and prior to due presentment of a Warrant Certificate for registration of
transfer,] [T]he Company and the Warrant Agent may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT.
Section 5.01. Warrant Agent. The Company hereby appoints
_______________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and _______________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on
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<PAGE>
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
Section 5.02 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred other
than as a result of the Warrant Agent's negligence, bad faith or willful
misconduct in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred other than as a
result of the Warrant Agent's negligence, bad faith or willful misconduct,
arising out of or in connection with its acting as Warrant Agent hereunder, as
well as the reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
-8-
<PAGE>
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand upon
the Company.
Section 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall it all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers)
-9-
<PAGE>
and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.02(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant Agent
or of its property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
-10-
<PAGE>
ARTICLE VI.
MISCELLANEOUS.
Section 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not materially adversely affect the interests of the holders
of the Warrant Certificates. The parties hereto may also modify or amend this
Agreement and the terms of the Warrant Certificates with the consent of the
holders of not less than a majority in number of the then outstanding
unexercised Warrant Certificates affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Warrant Certificates the
consent of the holders of which is required for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the Warrant Certificates, may be made without the consent of each holder
affected thereby.
Section 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
__________________________________________________, Attention: ________________
and any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Dayton Hudson Corporation, 777 Nicollet Mall,
Minneapolis, Minnesota 55402, Attention: Corporate Secretary (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
Section 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of __________________.
Section 6.05. Delivery of Prospectus. The Company shall furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such
-11-
<PAGE>
exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
Section 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities act filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
Section 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
-12-
<PAGE>
IN WITNESS WHEREOF Dayton Hudson Corporation and ______________ have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
DAYTON HUDSON CORPORATION
By
--------------------------------
Its
-----------------------------
Attest:
- ----------------------------
[WARRANT AGENT]
By
--------------------------------
Its
-----------------------------
Attest:
- ----------------------------
-13-
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _______________ this Warrant Certificate
Securities with Warrants cannot be transferred or exchanged unless attached
which are not immediately to a [Title of Offered Securities].]
detachable.
[Form of Legend if Prior to __________________, Warrants evidenced by
Warrants are not this Warrant Certificate cannot be exercised.]
immediately exercisable.
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
DAYTON HUDSON CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 3:30 P.M., NEW YORK CITY TIME, ON __________________
No. ____ ___________________ Warrants
This certifies that __________________________________ or registered
assigns is the registered owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 3:30 p.m., New York City time, on __________________ and] on or
before 3:30 p.m., New York City time, on __________________, _________ shares of
[Title of Warrant Securities] (the "Warrant Securities"), of Dayton Hudson
Corporation (the "Company") on the following basis: during the period from
________________, through and including ____________, the exercise price of each
Warrant will be _________; during the period from ________________, through and
including ____________, the exercise price of each Warrant will be _________
(the "Warrant Price"). No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant. The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [in cash or by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] in immediately
available funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof
<PAGE>
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or _____________________],
which is, on the date hereof, at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable --, prior to
_________________ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] the person in whose name at the time
this Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ____________________].
[If Offered Securities with registered Warrants which are not
immediately detachable -- Prior to ______________, this Warrant Certificate may
be exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with registered Warrants which are immediately detachable --
Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or __________________] by the registered owner or such owner's assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[if Offered Securities with Warrants which are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
___________________] for Warrant Certificates representing the same aggregate
number of Warrants.
A-2
<PAGE>
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________
DAYTON HUDSON CORPORATION
By
--------------------------------
Its
-----------------------------
Attest:
- ----------------------------
Countersigned:
- ----------------------------
As Warrant Agent
By
--------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in
United States dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds the Warrant Price in full for Warrants exercised to [insert name
of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. ____________________ [or ____________________], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase _________ shares of
the [Title of Warrant Securities] (the "Warrant Securities") of Dayton Hudson
Corporation and represents that he has tendered payment for such Warrant
Securities [in Dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds to the order of Dayton Hudson Corporation, c/o [insert name and
address of Warrant Agent], in the amount of _________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-4
<PAGE>
Dated: _________________________ Name ________________________________
________________________________ Address _____________________________
(Insert Social Security or Other
Identifying Number of Holder) _____________________________
Signature Guaranteed
_________________________ Signature ____________________________
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
By mail at ____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
A-5
<PAGE>
Exhibit 4(n)
DAYTON HUDSON CORPORATION
Form of Common Stock Warrant Agreement
COMMON STOCK WARRANT AGREEMENT dated as of _________________, ____,
between Dayton Hudson Corporation, a Minnesota corporation (hereinafter called
the "Company"), and ___________________________ having a corporate trust office
in _______________________________, as warrant agent (hereinafter called the
"Warrant Agent").
WHEREAS, the Company proposes to issue [Class __] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of _________ shares of Common Stock of the Company (par value $1.00
per share) (hereinafter called the "Shares") at an initial cash purchase price
of $______ per Share at any time [after _________________ and] prior to 3:30
p.m., New York City time, on __________________, ____ (hereinafter called the
"expiration date") (unless extended as provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
WHEREAS, the Warrants will be offered in Units, each of which consists
of _______________________ and Warrants to purchase _________ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company,
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Form of Warrant. The text of the Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the terms of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise price of $______ per Share; provided, however, that the warrant
exercise price and the number of Shares issuable upon exercise of Warrants are
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman of the Board,
President or Vice President of the Company, under its seal, affixed or in
facsimile, and by
<PAGE>
the manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company.
The Company shall promptly notify the Warrant Agent from time to time
in writing of the number of Warrants to be issued and furnish written
instructions in connection therewith signed by an executive officer of the
Company; such notification and instructions may, but need not be, in the form of
a general or continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of
each initial issuance, and as of the date of issuance thereof upon any transfer
or exchange thereof.
Section 3. Countersignature and Registration. The Warrant Agent
shall maintain books for the transfer and registration of the Warrants. Upon
the initial issuance of the Warrants, the Warrant Agent shall issue and register
the Warrants in the names of the respective registered holders thereof. The
Warrants shall be countersigned by the Warrant Agent (or by any successor to the
Warrant Agent then acting as warrant agent under this Agreement) and shall not
be valid for any purpose unless so countersigned. Such Warrants may be so
countersigned, however, by the Warrant Agent (or by its successor as warrant
agent) and be delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature or delivery. Upon issuance of any Warrant, the Company will
present the same, or cause the same to be presented, to the Warrant Agent for
countersignature of such Warrant.
Section 4. Transfers and Exchanges. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon the surrender
thereof for transfer properly endorsed or accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Warrant of like tenor
shall be issued to the transferee and the surrendered Warrant shall be cancelled
by the Warrant Agent. All such Warrants so cancelled shall be delivered by the
Warrant Agent to the Company from time to time. The Warrants may be exchanged at
the option of the holder thereof, when surrendered at the office in
______________________________________ of the Warrant Agent, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Shares. The
Warrant Agent is hereby irrevocably authorized to countersign and deliver, in
accordance with the provisions of this Section and Section 3 of this Agreement,
such new Warrants required pursuant to the provisions of this Section, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such purpose.
-2-
<PAGE>
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
Notwithstanding the foregoing, until __________________, the Warrants
shall not be transferable apart from the _____________ to which they are
attached, any transfer of the _____________ shall be deemed a transfer of the
Warrants attached thereto, and any attempt to transfer the Warrants apart from
the ___________________ shall be void and of no effect. Each Warrant shall
contain a legend to the foregoing effect.]
Section 5. Exercise of Warrants. The registered holder of each
Warrant shall have the right, which may be exercised as in such Warrant
expressed, to purchase from the Company (and the Company shall issue and sell to
such registered holder) the number of Shares specified in such Warrants, upon
surrender to the Company, at the office in _____________________________ of the
Warrant Agent of such Warrant, with the form of election to purchase on the
reverse thereof duly filled in and signed, and upon payment to the Warrant Agent
for the account of the Company of the warrant exercise price, determined in
accordance with the provisions of Section 9 of this Agreement, for the number of
Shares in respect of which such Warrant is then exercised. Payment of such
warrant exercise price may be made in cash, or by certified check or bank draft
or postal or express money order, payable in United States dollars, to the order
of the Warrant Agent. No adjustment shall be made for any dividends on any
Shares issuable upon exercise of any Warrant. Subject to Section 6, upon such
surrender of Warrants, and payment of the warrant exercise price as aforesaid,
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the registered holder of such Warrants, and in
such name or names as such registered holder may designate, a certificate or
certificates for the number of full Shares so purchased upon the exercise of
such Warrants, together with cash, as provided in Section 9 of this Agreement,
in respect of any fraction of a Share otherwise issuable upon such surrender.
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a holder
of record of such Shares as of the date of the surrender of such Warrants and
payment of the warrant exercise price as aforesaid; provided, however, that if,
at the date of surrender of such Warrants and payment of such warrant exercise
price, the transfer books for the Shares purchasable upon the exercise of such
Warrants shall be closed, no such surrender of such Warrants and no such payment
of such warrant exercise price shall be effective to constitute the person so
designated to be named therein as the holder of record of such Shares on such
date, but shall be effective to constitute such person as the holder of record
of such Shares for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Shares purchasable upon the
exercise of such Warrants shall be opened, and the certificates for the Shares
in respect of which such Warrants are then exercised shall be issuable as of the
date on which such books shall next be opened, and until such date the Company
shall be under no duty to deliver any certificate for such Shares. The rights
of purchase represented by the Warrants shall be exercisable, at the election of
the registered holders thereof, either as an entirety or from time to time for
part only of the Shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the Shares specified therein at any
time prior to the date of expiration of the Warrants, a new Warrant or Warrants
of like tenor will be issued for the remaining number of
-3-
<PAGE>
Shares specified in the Warrant so surrendered, and the Warrant Agent is hereby
irrevocably authorized to countersign and to deliver the required new Warrants
pursuant to the provisions of this Section and of Section 3 of this Agreement,
and the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such purpose.
Section 6. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Shares issuable upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any certificates for Shares in a name other than
that of the registered holder of Warrants in respect of which such Shares are
issued and the Company shall not be required to issue and deliver the
certificates for such Shares unless and until the holder has paid to the Company
the amount of any tax which may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of the Company that such
tax has been paid.
Section 7. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the Company will issue
and the Warrant Agent will countersign and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrants and indemnity, if requested, also satisfactory
to them. Applicants for such substitute Warrants shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Company or the Warrant Agent may prescribe. Any such new Warrant shall
constitute an original contractual obligation of the Company whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
Section 8. Reservation of Shares, etc. Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the expiration date keep reserved, out of its authorized and unissued
Common Stock, a number of Shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Shares and every subsequent Transfer Agent for the Shares issuable upon the
exercise of any of the rights of purchase aforesaid are hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued Shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for the Shares and with
every subsequent Transfer Agent for the Shares issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in Section 9 of this Agreement. All Warrants
surrendered in the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or
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partial exercise shall be cancelled by the Warrant Agent and shall thereafter be
delivered to the Company.
Section 9. Warrant Price; Adjustments.
A. The warrant price per share at which Shares shall be purchasable
upon exercise of Warrants (herein called the "warrant exercise price") to and
including the expiration date (unless the expiration date is extended as
provided below in this Section 9A) shall be $______ per share, or, if adjusted
as provided in this Section, shall be such price as so adjusted. The Warrants
will not be exercisable prior to [the close of business on the date of any
initial issuance thereof] [_____________________] and will expire at 3:30 p.m.,
New York City time, on the expiration date; provided that the Company reserves
the right to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the Company so determines, extend the expiration
date of the Warrants for such periods of time as it chooses; further provided
that in no case may the expiration date of the Warrants (as extended) be
extended beyond five years from the expiration date set forth above. Whenever
the expiration date of the Warrants is so extended, the Company shall at least
20 days prior to the then expiration date cause to be mailed to the Warrant
Agent and the registered holders of the Warrants in accordance with the
provisions of Section 17 hereof a notice stating that the expiration date has
been extended and setting forth the new expiration date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable
upon exercise of each Warrant and the number of Warrants outstanding shall
be subject to adjustment as follows:
(a) In case the Company shall at any time after the date of
this Agreement (i) pay a dividend, or make a distribution, on the
Common Stock which is payable in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding shares of Common Stock into a
greater number of securities (including shares of Common Stock), or
(iii) combine or reclassify its outstanding shares of Common Stock
into a smaller number of shares (including shares of Common Stock),
the number of shares purchasable upon exercise of each Warrant
immediately prior to the occurrence of such event shall be adjusted so
that the holder of each Warrant shall be entitled to receive upon
payment of the warrant purchase price the aggregate number of shares
of the Company which, if such Warrant had been exercised immediately
prior to the occurrence of such event, such holder would have owned or
have been entitled to receive immediately after the occurrence of such
event. An adjustment made pursuant to this subparagraph (a) shall
become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of a subdivision or
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combination. If, as a result of an adjustment made pursuant to this
subparagraph (a), the holder of any Warrant thereafter exercised shall
become entitled to receive shares of two or more classes of capital
stock of the Company, the Board of Directors of the Company (whose
determination shall be conclusive) shall determine the allocation
between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive any shares or
other securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so received upon exercise
of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Common Stock contained in
this paragraph, and other provisions of this paragraph 9B(1) with
respect to the shares of Common Stock shall apply on like terms to any
such other shares or other securities.
[(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after such record
date) to subscribe for or purchase Common Stock at a price per share
less than the current market price per share of Common Stock (as
defined in subparagraph (e) below) at such record date, the warrant
purchase price shall be determined by multiplying the warrant purchase
price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Shares of Common Stock
outstanding on such record date plus the number of Shares of Common
Stock which the aggregate offering price of the total number of Shares
so offered would purchase at such current market price, and the
denominator of which shall be the number of Shares of Common Stock
outstanding on such record date plus the number of additional Shares
of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever such a record date is fixed, and
shall become effective immediately after such record date. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase Shares of Common Stock at less than such
current market price, and in determining the aggregate offering price
of such shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors of the Company. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required under
this subparagraph (b).]
[(c) In case the Company shall fix a record date for making
a distribution to all holders of its Common Stock of evidences of its
indebtedness or
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assets (excluding regular quarterly or other periodic or recurring
cash dividends or distributions and cash dividends or distributions
paid from retained earnings or referred to in subparagraph (a) above)
or rights or warrants to subscribe or warrants to purchase (excluding
those referred to in subparagraph (b) above), then in each such case
the warrant purchase price shall be determined by multiplying the
warrant purchase price in effect immediately prior to such record date
by a fraction (x) the numerator of which shall be such current market
price (as defined in subparagraph (e) below) per Share of Common Stock
on such record date, less the then fair market value (as determined in
good faith by the Board of Directors, whose determination shall be
conclusive) of the portion of the assets or evidences of indebtedness
so distributed or of such subscription rights or warrants applicable
to one share of the Common Stock and (y) the denominator of which
shall be the current market price per share of the Common Stock on
such record date. Such adjustment shall be made successively whenever
such a record date is fixed and shall become effective immediately
after such record date. Notwithstanding the foregoing, in the event
that the Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subparagraph (c), the
distribution of separate certificates representing such Rights
subsequent to their initial distribution (whether or not such
distribution shall have occurred prior to the date of the issuance of
such Warrants) shall be deemed to be the distribution of such Rights
for purposes of this subparagraph (c), provided that the Company may,
in lieu of making any adjustment pursuant to this subparagraph (c)
upon a distribution of separate certificates representing such Rights,
make proper provision so that each holder of such Warrants who
exercises such Warrants (or any portion thereof) (A) before the record
date for such distribution of separate certificates shall be entitled
to receive upon such exercise shares of Common Stock issued with
Rights and (B) after such record date and prior to the expiration,
redemption or termination of such Rights shall be entitled to receive
upon such exercise, in addition to the shares of Common Stock issuable
upon such exercise, the same number of such Rights as would a holder
of the number of shares of Common Stock that such Warrants so
exercised would have entitled the holder thereof to purchase in
accordance with the terms and provisions of and applicable to the
Rights if such Warrants were exercised immediately prior to the record
date for such distribution. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required under
this subparagraph (c).]
(d) After each adjustment of the number of shares
purchasable upon exercise of each Warrant pursuant to subparagraph
9B(1)(a), the warrant exercise price shall be adjusted by multiplying
such warrant exercise price immediately prior to such adjustment by a
fraction of which the numerator shall be the number of Shares
purchasable upon exercise of each Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of
Shares so
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purchasable immediately thereafter. [After each adjustment of the
warrant exercise price pursuant to subparagraph 9B(1)(b) or (c), the
total number of Shares or fractional part thereof purchasable upon the
exercise of each Warrant shall be proportionately adjusted to such
number of shares or fractional parts thereof as the aggregate warrant
exercise price of the number of shares or fractional part thereof
purchasable immediately prior to such adjustment will buy at the
adjusted warrant exercise price.]
[(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days commencing 45
business days before the day in question. The closing price for each
day shall be (i) if the Common Stock is listed or admitted for trading
on the New York Stock Exchange, the last sale price (regular way), or
the average of the closing bid and ask prices (regular way), if no
sale occurred, of Common Stock, in either case as reported on the New
York Stock Exchange Composite Tape or, if the Common Stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or, (ii) if not listed or quoted as
described in (i), the mean between the closing high bid and low asked
quotations of Common Stock reported by NASDAQ, or any similar system
for automated dissemination of quotations of securities prices then in
common use, if so quoted, or (iii) if not quoted as described in
clause (ii), the mean between the high bid and low asked quotations
for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid
and asked quotations for Common Stock on at least 5 of the 10
preceding days. If none of the conditions set forth above is met, the
closing price of Common Stock on any day or the average of such
closing prices for any period shall be the fair market value of Common
Stock as determined by a member firm of the New York Stock Exchange
selected by the Company.]
(f) (A) Nothing contained herein shall be construed to
require an adjustment as a result of the issuance of Common Stock
pursuant to, or the granting or exercise of any rights under, the
Company's [List employee and shareholder plans, if any, that might
otherwise result in adjustments].
(B) In addition, no adjustment in the warrant exercise
price shall be required unless and until the earlier of the
following shall have occurred: (x) such adjustment would require
an increase or decrease of at least 1% in the warrant exercise
price or (y) a period of 3 years shall
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have elapsed from the date of the occurrence of any event
requiring any such adjustment pursuant to subparagraphs
9B(1)(a)[, (b) or (c)] above. All adjustments shall be made to
the nearest one hundredth of a Share and the nearest cent, and
any adjustments which by reason of this subparagraph (f) are not
required to be made shall be carried forward cumulatively and
taken into account in any subsequent adjustment which (including
such carry-forward) is required to be made under this
subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall
require that an adjustment be made retroactively immediately following
a record date, the Company may elect to defer (but only until five
business days following the mailing of the notice described in
subparagraph 9B(5) below) issuing to the holder of any Warrant
exercised after such record date the Shares of the Company issuable
upon such exercise over and above the Shares issuable upon such
exercise only on the basis of the warrant exercise price prior to
adjustment.
(h) The Company may, at its option, at any time until the
expiration date, reduce the then current warrant exercise price to any
amount deemed appropriate by the Board of Directors of the Company for
any period not exceeding twenty (20) consecutive days (as evidenced in
a resolution adopted by such Board of Directors), but only upon giving
the notices required by subparagraph 9(B)(5) twenty (20) days prior to
taking such action.
(i) Except as herein otherwise expressly provided, no
adjustment in the warrant exercise price shall be made by reason of
the issuance of Shares, or securities convertible into or exchangeable
for Shares, or securities carrying the right to purchase any of the
foregoing or for any other reason whatsoever.
(j) Irrespective of any of the adjustments in the warrant
exercise price or the number of Shares, Warrant Certificates
theretofore issued may continue to express the same prices and number
of shares as are stated in a similar Warrant Certificate issuable
initially, or at some subsequent time, pursuant to this Agreement and
such number of Shares specified therein shall be deemed to have been
so adjusted.
(2) No fractional Shares of Common Stock shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Shares which shall be issuable
upon such exercise shall be computed on the basis of the aggregate number
of Shares purchased pursuant to the Warrants so exercised. Instead of any
fractional Share of Common Stock which would otherwise be issuable upon
exercise of any Warrant, the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last
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sales price (or bid price if there were no sales) per Share of Common
Stock, in either case as reported on the New York Stock Exchange Composite
Tape on the business day which next precedes the day of exercise or, if the
Common Stock is not then listed or admitted to trading on the New York
Stock Exchange, an amount equal to the same fraction of the market price
per share of Common Stock (as determined in a manner described by the Board
of Directors of the Company) at the close of business on the business day
which next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants
are outstanding: (a) any reclassification or change of the outstanding
Shares of Common Stock (other than a change in par value, or from par value
to no par value, or from no par value to par value); or (b) any
consolidation or merger to which the Company is a party (other than a
consolidation or a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
in, the outstanding shares of Common Stock issuable upon exercise of the
Warrants); or (c) any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety;
then the Company, or such successor or purchasing corporation, as the case
may be, shall make appropriate provision by amendment of this Agreement or
otherwise so that the holders of the Warrants then outstanding shall have
the right at any time thereafter, upon exercise of such Warrants, to
purchase the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation,
merger, sale or conveyance as would be received by a holder of the number
of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger,
sale or conveyance. Such provision shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 9. The above provisions of this subparagraph
9B(3) shall similarly apply to successive reclassifications, changes,
consolidations, mergers, sales or conveyances.
(4) Before taking any action which would cause an adjustment
decreasing the warrant exercise price so that the warrant exercise price is
below the then par value of the shares of Common Stock, the Company will
take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully
paid and nonassessable Shares of Common Stock at the warrant exercise price
as so adjusted.
(5) Whenever the warrant exercise price then in effect is
adjusted as herein provided, the Company shall mail to each holder of the
Warrants at such holder's address as it shall appear on the books of the
Company a statement setting forth the adjusted warrant exercise price then
and thereafter effective under the provisions hereof, together with the
facts, in reasonable detail, upon which such adjustment is based.
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(6) In case (i) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in cash out
of its current or retained earnings, or (ii) the Company shall authorize
the granting to the holders of its Common Stock of rights to subscribe for
or purchase any shares of capital stock of any class or of any other
rights, or (iii) there is to be any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any shareholders of the
Company is required, or (iv) any distribution is to be made on or in
respect of the Common Stock in connection with the dissolution, liquidation
or winding up of the Company, then the Company shall mail to each holder of
Warrants at such holder's address as it shall appear on the books of the
Company, at least twenty days (or ten days in any case specified in clause
(i) or (ii) above) prior to the applicable record date hereinafter
specified, a notice stating (x) the record date for such dividend,
distribution or rights, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on
which such reclassification, consolidation, merger, dissolution,
liquidation or winding up is expected to become effective, and the date as
of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger,
dissolution, liquidation or winding up. No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect any such
transaction or any adjustment in the warrant exercise price required by
this Section 9.
Section 10. Notice to Warrantholders. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
holders thereof the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company.
Section 11. Certain Covenants of the Company.
A. So long as any unexpired Warrants remain outstanding and if
required in order to comply with the Securities Act of 1933, as amended (the
"Act"), the Company covenants and agrees that it will file such post-effective
amendments to the registration statement filed pursuant to the Act with respect
to the Warrants (File No. 33-_____) (or such other registration statements or
post-effective amendments or supplements) as may be necessary to permit the
Company to deliver to each person exercising a Warrant a prospectus meeting the
requirements of Section 10(a)(3) of the Act and otherwise complying therewith,
and will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the
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Warrants, and to maintain such qualifications during the entire period in which
the Warrants are exercisable.
B. The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Shares will at the time of
delivery of certificates for such Shares (subject to payment of the warrant
exercise price) be duly and validly authorized and issued and fully paid and
nonassessable Shares, free from any preemptive rights and taxes, liens, charges
and security interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action
which may be necessary to cause the Shares to be duly listed on the New York
Stock Exchange or any securities exchange on which the other shares of Common
Stock of the Company are listed or on the National Market System of NASDAQ at
the dates of exercise of the Warrants.
Section 12. Disposition of Proceeds, etc.
A. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all moneys
received by the Warrant Agent for the purchase of Shares through the exercise of
such Warrants.
B. The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours at its
principal office in the City of __________, __________.
Section 13. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of (S)15 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and if any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrants
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant shall have the full
force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and in case
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at that time any of the Warrants shall not have been countersigned, the Warrant
Agent may countersign such Warrants either in its prior name or in its changed
name; and in all such cases such Warrants shall have the full force provided in
the Warrants and in this Agreement.
Section 14. Duties of Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Warrants, by
their acceptance thereof, shall be bound:
A. The statements contained herein and in the Warrants shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care shall have been
exercised in the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent agreed upon
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent
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in the execution of this Agreement except as a result of the Warrant Agent's
negligence, bad faith or willful misconduct.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the registered holders of the Warrants, as their respective rights or
interests may appear.
H. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in
a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
Section 15. Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by publication, of
such resignation, specifying a date when such resignation shall take effect,
which notice shall be published at the expense of the Company at least once a
week for two consecutive weeks in a newspaper of general circulation in the City
of New York prior to the date so specified. The Warrant Agent may be removed by
the Company by like notice from the Company to the Warrant Agent and the holders
of Warrants at the expense of the Company. If the Warrant Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who shall,
with such notice, submit his Warrant for inspection by the Company), then, at
the expense of the Company, the Warrant Agent or the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be a bank or trust company,
in good standing,
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incorporated under the laws of any State or of the United States of America,
having at the time of its appointment as Warrant Agent a combined capital and
surplus of at least $50,000,000. After appointment the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed; but
the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
file or publish any notice provided for in this Section, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
Section 16. Identity of Transfer Agent. Forthwith upon the
appointment of any Transfer Agent for the Shares or of any subsequent Transfer
Agent for Shares issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
Section 17. Notices. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any Warrant to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
Dayton Hudson Corporation
777 Nicollet Mall
Minneapolis, Minnesota 55402
Attn: Corporate Secretary
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
__________________________
__________________________
__________________________
__________________________
Any notice pursuant to this Agreement to be given or made by the
Company or the Warrant Agent to the registered holder of any Warrant shall be
sufficiently given or made (unless otherwise specifically provided for herein)
if sent by first-class mail, postage prepaid, addressed to said registered
holder at his address appearing on the Warrant register.
-15-
<PAGE>
Section 18. Supplements and Amendments. The parties hereto may from
time to time supplement or amend this Agreement without the approval of any
holders of Warrants in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which will not materially adversely affect the
interest of the registered holders of the Warrants. The parties hereto may also
modify or amend this Agreement and the terms of the Warrants with the consent of
the holders of not less than a majority in number of the then outstanding
unexercised Warrants affected thereby; provided that no such modification or
amendment that accelerates the expiration date, increases the exercise price,
reduces the number of outstanding Warrants the consent of the holders of which
is required for any such modification or amendment, or otherwise materially
adversely affects the rights of the holders of the Warrants, may be made without
the consent of each holder affected thereby.
Section 19. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 20. Law Governing Contract. This Agreement and each Warrant
issued hereunder shall be deemed to be a contract made under the laws of the
State of _____________ and for all purposes shall be construed in accordance
with the laws of said State.
Section 21. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or entity other than the Company and
the Warrant Agent and the holders of Warrants any legal or equitable right,
remedy or claim under this Agreement, but this Agreement shall be for the sole
and exclusive benefit of the Company and the Warrant Agent and the holders of
Warrants.
Section 22. Counterparts. This Agreement may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT --
Section 23. Acceleration of Warrants by the Company.
A. At any time on or after __________________, the Company shall
have the right to accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a specified date (the
"Acceleration Date"), if the Market Price (as hereinafter defined) of the Common
Stock equals or exceeds ______ percent (___%) of the then effective warrant
exercise price, adjusted as if no changes in such warrant exercise price had
been
-16-
<PAGE>
made pursuant to subsection 9B, on any 20 Trading Days (as hereinafter defined)
within a period of 30 consecutive Trading Days ending no more than five Trading
Days prior to the date on which the Company gives notice to the Warrant Agent of
its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common Stock
is listed or admitted for trading on the New York Stock Exchange, the last
reported sale price, regular way (or, if no such price is reported, the average
of the reported closing bid and asked prices, regular way) of Common Stock, in
either case as reported on the New York Stock Exchange Composite Tape or, if the
Common Stock is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market System of NASDAQ or,
if not listed or admitted to trading on any national securities exchange or
quoted on the National Market System of NASDAQ, the average of the closing high
bid and low asked prices in the over-the-counter market, as reported by NASDAQ,
or such other system then in use, or if on any such date the Shares of Common
Stock are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by any New York Stock Exchange firm selected from
time to time by the Company for the purpose. "Trading Day" shall be each Monday
through Friday, other than any day on which securities are not traded in the
system or on the exchange that is the principal market for the Common Stock, as
determined by the Board of Directors of the Company.
C. In the event of an acceleration of less than all of the Warrants,
the Warrant Agent shall select the Warrants to be accelerated by lot, pro rata
or in such other manner as it deems, in its discretion, to be fair and
appropriate.
D. Notice of an acceleration specifying the Acceleration Date shall
be sent by mailing first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder's address
appearing on the Warrant register not more than 60 days nor less than 30 days
before the Acceleration Date. Such notice of an acceleration also shall be
given no more than 20 days, and no less than 10 days, prior to the mailing of
notice to registered holders of Warrants pursuant to this Section, by
publication at least once in a newspaper of general circulation in the City of
New York.
E. Any Warrant accelerated may be exercised until the 3:30 p.m., New
York City time, on the business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in Section 5.]
-17-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
DAYTON HUDSON CORPORATION
By _____________________________________
Its _________________________________
Attest:
_________________________________
________________________________________
Warrant Agent
By _____________________________________
Its _________________________________
Attest:
_________________________________
-18-
<PAGE>
[Form of Warrant]
Unless extended, Void After 3:30 P.M.,
New York City time, _______* _______, ____
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT THE FOLLOWING --
[UNTIL ______________,] THE WARRANTS REPRESENTED BY THIS CERTIFICATE SHALL NOT
BE TRANSFERABLE APART FROM THE _____________ TO WHICH THEY ARE ATTACHED, ANY
TRANSFER OF THE _____________ SHALL BE DEEMED A TRANSFER OF THE WARRANTS
ATTACHED THERETO, AND ANY ATTEMPT OF TRANSFER THE WARRANTS APART FROM THE
_____________ SHALL BE VOID AND OF NO EFFECT.]
No. ___ Warrant to Purchase
____ Shares of Common Stock
CLASS __ WARRANT
DAYTON HUDSON CORPORATION
FOR VALUE RECEIVED, Dayton Hudson Corporation (the "Company"), upon
the surrender [after _______________] and prior to 3:30 P.M., New York City
time, ________* _______, ____ (unless extended) of this Warrant for exercise,
with the exercise form on the reverse side hereof duly executed, at the office
of ______________________, will sell and deliver or cause to be sold and
delivered to __________________ or assigns (the "Warrant Holder") a certificate
or certificates for the number of whole shares purchasable, as indicated above,
of fully paid and non-assessable shares of Common Stock ($1.00 par value) of the
Company (the "Shares"), for which this Warrant is exercised, at a price of
$_____ per Share (the "Warrant Price"), subject to all the terms, provisions and
conditions of a Common Stock Warrant Agreement dated as of ____________, ____
(the "Warrant Agreement"), executed by the Company and
_________________________________________________ (the "Warrant Agent"), which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof.
1. The Warrant Price shall be payable [in cash, certified check, bank
draft, postal or express money order or by bank wire transfer, in each case,]
[by bank wire transfer] in immediately available funds, payable in United States
dollars, to the order of the Warrant Agent. In certain events the Warrant Price
and the number of Shares deliverable on exercise of this Warrant are subject to
adjustments, as provided in the Warrant Agreement. No certificates for a
fractional Share will be issued. As to any fraction of a Share which would
otherwise be
- ----------------
/*/The expiration date; see page 1 of the Warrant Agreement.
-19-
<PAGE>
purchasable on the exercise of a Warrant, the Company shall pay the cash value
thereof determined as provided in the Warrant Agreement.
2. This Warrant is issued in accordance with the Warrant Agreement in
which the rights of the Warrant Holders and the terms, provisions and conditions
upon which this Warrant has been executed and delivered and may be exercised are
more fully set forth. Every Warrant Holder, by acceptance hereof, assents to
all the terms, provisions and conditions of the Warrant Agreement. A
counterpart of the Warrant Agreement is on file at the office of the Company in
Minneapolis, Minnesota, and at the office of the Warrant Agent in __________,
__________.
3. In the event this Warrant shall not be exercised on or before
________* _______, ____, unless said date is extended as provided for in Section
9 of the Warrant Agreement, this Warrant shall become void and all rights
hereunder shall cease.
Reference is made to the further provisions of this Warrant set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Warrant shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
-20-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its name and on its behalf by the facsimile signatures of its duly authorized
officers and a facsimile of its seal.
Dated: ______________________
DAYTON HUDSON CORPORATION
By
----------------------------------
Its
-------------------------------
Attest:
- --------------------------------
- --------------------------------
Countersigned:
- --------------------------------
- --------------------------------
Warrant Agent
By
------------------------------
Authorized Signature
[REVERSE OF WARRANT]
4. Subject to the provisions of paragraph 3 contained on the face of
this Warrant, (a) this Warrant, with or without other Warrants, upon surrender
at the office of the Warrant Agent, may be exchanged for another Warrant or
Warrants of like tenor in denominations entitling the Warrant Holder to purchase
a like aggregate number of Shares, but only to the extent provided in the
Warrant Agreement, or (b) this Warrant may be transferred at the office of the
Warrant Agent by the Warrant Holder or his assigns, in person or by attorney
duly authorized in
-21-
<PAGE>
writing, but only in the manner provided in the Warrant Agreement and upon
surrender of this Warrant. If this Warrant shall be exercised in part, the
Warrant Holder shall be entitled to receive, upon surrender hereof, another
Warrant or Warrants of like tenor for the number of whole Shares not purchased
upon such exercise.
5. No Warrant Holder shall be entitled to vote or receive dividends
or be deemed the holder of Shares of the Company for any purpose, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon the Warrant Holder, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors of the Company, or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any action (whether upon any recapitalization, issue of
securities, reclassification of securities, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings or other action affecting
shareholders (except for notices as provided for in the Warrant Agreement), or
to receive dividends or subscription rights or otherwise, until this Warrant
shall have been exercised and the Shares purchasable on the exercise hereof
shall have become deliverable as provided in the Warrant Agreement.
6. Every holder of a Warrant, by accepting this Warrant, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
this Warrant that until this Warrant is transferred on the books of the Warrant
Agent, the Company and the Warrant Agent may treat the registered holder hereof
as the absolute owner hereof for all purposes notwithstanding any notice to the
contrary.
7. The Company represents and warrants that the Shares to be issued
by it as provided in the Warrant Agreement have been duly authorized and, when
so issued in accordance with the Warrant Agreement, will be validly issued,
fully-paid and non-assessable. The Company represents and warrants that it has
authority to execute and deliver the Warrant Agreement and the Warrants
thereunder, but the Warrant Agent makes no representation with respect thereto,
or with respect to the validity or sufficiency of the Warrants, the Warrant
Agreement or the Shares.
-22-
<PAGE>
FORM OF EXERCISE
(Form of exercise to be executed by the Warrant Holder
at the time of exercise)
To ____________________________
_______________________, Warrant
Agent:
The undersigned, holder of the within Warrant, (1) exercises his right
to purchase _________ of the Shares of Common Stock ($1.00 par value) of Dayton
Hudson Corporation, which the undersigned is entitled to purchase under the
terms of the within Warrant, and (2) makes payment in full for the number of
Shares of Common Stock so purchased by payment of $_________ in cash.
Please issue the certificate for Shares of Common Stock (and any new
Warrants in the case of a partial exercise) as follows:
- -------------------------------------------------------------------------------
Print or Type Name
- -------------------------------------------------------------------------------
Social Security or other Identifying Number
- -------------------------------------------------------------------------------
Street Address
- -------------------------------------------------------------------------------
City State Zip Code
-23-
<PAGE>
and deliver it (together with any new Warrants in the case of a partial
exercise) to the above address unless a different address is indicated below.
Dated: __________________
--------------------------------------------------
Signature
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
To be used only for special instructions for delivery.
Deliver to:
- -------------------------------------------------------------------------------
Print or Type Name
- -------------------------------------------------------------------------------
Street Address
- -------------------------------------------------------------------------------
City State Zip Code
-24-
<PAGE>
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto
- -------------------------------------------------------------------------------
Print or Type Name
- -------------------------------------------------------------------------------
Street Address
- -------------------------------------------------------------------------------
City State Zip Code
- -------------------------------------------------------------------------------
Social Security or other Identifying Number
the right represented by the within Warrant to purchase _________ Shares of
Common Stock ($1.00 par value) of Dayton Hudson Corporation to which the within
Warrant relates and appoints _____________________ attorney to transfer such
right on the books of the Warrant Agent with full power of substitution in the
Premises.
Dated: ___________________
-------------------------------------------------
Signature
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
- --------------------------------
Signature Guaranteed
-25-
<PAGE>
Exhibit 4(o)
COMMON
NUMBER STOCK
ND PAR VALUE SHARES
- -- $1 PER SHARE
H
INCORPORATED UNDER
THE LAWS OF THE STATE SEE REVERSE FOR
OF MINNESOTA CERTAIN DEFINITIONS
DAYTON HUDSON CORPORATION
This Certifies that
COUNTERSIGNED AND
REGISTERED:
FIRST CHICAGO TRUST
COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED OFFICER
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES
OF COMMON STOCK OF
Dayton Hudson Corporation, transferable
on the books of the Corporation by the
holder hereof in person or by duly
authorized attorney upon surrender of
this certificate properly endorsed. This
certificate and the shares represented
hereby are issued and shall be held
subject to all the provisions of the
Articles of Incorporation of the
Corporation and all amendments thereto,
copies of which are on file with the
Transfer Agent, to all of which the
holder, by acceptance hereof, assents.
This certificate is not valid unless
countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile seal of the
Corporation and the facsimile signatures
of its duly authorized officers.
CORPORATE
DATED SEAL
SECRETARY CHAIRMAN AND CEO
<PAGE>
DAYTON HUDSON CORPORATION
The shares of stock of the Corporation are subject to certain rights,
preferences and restrictions. A full statement of the classes of stock and of
the series thereof, the number of shares in each class and series, and the
relative rights, voting power, preferences and restrictions granted to or
imposed upon the shares of stock of each class and series is contained in the
Articles of Incorporation of the Corporation, as amended from time to time, a
copy of which will be furnished to any shareholder upon request and without
charge. Any such request should be addressed to the Secretary of the Corporation
at its principal office or to the Transfer Agent.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between Dayton Hudson Corporation and
Morgan Shareholder Services Trust Company, dated as of September 11, 1986 (the
"Rights Agreement"), the terms of which (including restrictions on the transfer
of such Rights) are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of Dayton Hudson Corporation.
Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by
this certificate. Dayton Hudson Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge promptly following
receipt of a written request therefor. Under certain circumstances, as set forth
in the Rights Agreement, Rights beneficially owned by Acquiring Persons (as
defined in the Rights Agreement) or Associates or Affiliates thereof and any
subsequent holder of such Rights may become null and void.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants Act ______________________
in common (State)
Additional abbreviations may also be used though not in the above list.
</TABLE>
For value received, _________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -----------------------------
| |
|___________________________|___________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ___________________________________________
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated, ____________________
________________________________________
<PAGE>
Exhibit 5
[DAYTON HUDSON CORPORATION LETTERHEAD]
January 23, 1996
Dayton Hudson Corporation
777 Nicollet Mall
Minneapolis, Minnesota 55402-1055
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
I am Assistant General Counsel of Dayton Hudson Corporation (the "Corporation")
and, as such, I have acted as counsel for the Corporation in the preparation of
a Registration Statement on Form S-3 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, (the "Securities Act") in connection with the proposed offer and sale
of the following securities (the "Securities") of the Corporation having an
aggregate initial offering price of up to $1,000,000,000:
(i) unsecured debt securities (the "Debt Securities"), issuable directly or
upon exercise of Warrants (as defined below);
(ii) preferred stock, $.01 par value per share, (the "Preferred Stock") of the
Corporation, interests in which may be evidenced by appropriately
prepared depositary shares (the "Depositary Shares"), issuable directly
or upon exercise of Warrants (as defined below);
(iii) common stock, $1.00 par value per share (the "Common Stock") of the
Corporation, issuable directly or upon conversion of Debt Securities or
Preferred Stock, or Depositary Shares, or upon exercise of Warrants (as
defined below); and
(iv) warrants to purchase Debt Securities, Preferred Stock, Depositary Shares
or Common Stock (collectively, the "Warrants").
The Securities may be offered separately or as part of units with other
Securities, in separate series, in amounts, at prices, and on terms to be set
forth in the prospectus and one or more supplements to the prospectus
(collectively, the "Prospectus") constituting a part of the Registration
Statement, and in the Registration Statement. The term "Securities", as used
herein, shall incorporate the definition of the term "Offered Securities"
contained in the Prospectus and the Registration Statement.
[DAYTON HUDSON CORPORATION LETTERHEAD]
<PAGE>
Dayton Hudson Corporation
January 23, 1996
Page 2
The Debt Securities are to be in the forms filed as Exhibits 4(f) and 4(g) to
the Registration Statement, whichever is appropriate and with appropriate
insertions, and issued under the Indenture dated February 1, 1986, as amended
and supplemented, between the Corporation and First Trust National Association,
as Trustee, filed as Exhibits 4(d) and 4(e) to the Registration Statement (the
"Indenture"). The shares of Preferred Stock are to be evidenced by the forms of
preferred stock certificate filed as Exhibits 4(i) and 4(j) to the Registration
Statement, whichever is appropriate and with appropriate insertions. Each series
of Preferred Stock is to be issued under the Corporation's Restated Articles of
Incorporation, as amended, (the "Articles of Incorporation") and a certificate
of designations (a "Certificate of Designations") to be approved by the Board of
Directors of the Company or a committee thereof and filed with the Secretary of
State of the State of Minnesota (the "Minnesota Secretary of State") in
accordance with Section 302A.401 of the Minnesota Business Corporation Act. The
Depositary Shares are to be issued under a deposit agreement in the form filed
as Exhibit 4(k) to the Registration Statement, with appropriate insertions, (the
"Deposit Agreement") to be entered into by the Corporation, a depositary to be
named by the Corporation, and the holders from time to time of depositary
receipts of evidencing Depositary Shares. The Common Stock is to be evidenced by
the form of common stock certificate filed as Exhibit 4(o) to the Registration
Statement, with appropriate insertions, and issued under the Articles of
Incorporation. The Warrants are to be issued under warrant agreements in the
forms filed as Exhibits 4(l), 4(m) and 4(n) to the Registration Statement,
whichever is appropriate and with appropriate insertions, (the "Warrant
Agreements") to be entered into by the Corporation and warrant agents to be
named by the Corporation.
As part of the corporate action taken and to be taken in connection with
issuance of the Securities (the "Corporate Proceedings"), the Board of Directors
will, before they are issued, authorize the issuance of any Securities other
than the Debt Securities, and certain terms of the Securities to be issued by
the Corporation from time to time will be approved by the Board of Directors of
the Corporation or a committee thereof or certain authorized officers of the
Corporation.
I, or attorneys that I supervise, have examined or are otherwise familiar with
the Articles of Incorporation, the By-Laws of the Corporation, as amended, the
Registration Statement, such of the Corporate Proceedings as have occurred as of
the date hereof, and such other documents, records, and instruments as I have
deemed necessary or appropriate for the purposes of this opinion.
Based on the foregoing and the assumptions that follow, I am of the opinion
that:
(i) the Indenture is a valid and binding obligation of the Corporation;
<PAGE>
Dayton Hudson Corporation
January 23, 1996
Page 3
(ii) upon (a) the completion of all required Corporate Proceedings relating to
the issuance of Debt Securities and (b) the due execution and delivery of
the Debt Securities and (c) the due authentication of the Debt Securities
by the Trustee, such Debt Securities will be valid and binding
obligations of the Corporation;
(iii) upon (a) the due authorization, execution, acknowledgment, delivery and
filing by the Corporation with, and recording by, the Minnesota Secretary
of State of the applicable Certificate of Designations, (b) the
completion of all required Corporate Proceedings relating to the issuance
of Preferred Stock and (c) the due execution, issuance and delivery of
certificates representing the Preferred Stock pursuant to such
Certificate of Designations, the Preferred Stock will be validly
authorized and issued, fully paid and non-assessable;
(iv) upon (a) the completion of all required Corporate Proceedings relating to
the issuance of Common Stock and (b) the execution, issuance and delivery
of the certificates representing Common Stock, the Common Stock will be
validly authorized and issued, fully paid and non-assessable;
(v) upon (a) the completion of all required Corporate Proceedings relating to
the issuance of Warrants, (b) the due execution and delivery of Warrant
Agreements (c) the due execution and delivery of the related Warrants,
and (d) the due authentication of the related Warrants by the Warrant
Agent, such Warrants will be legally issued, valid and binding
obligations of the Corporation; and
(vi) upon (a) the completion of all required Corporate Proceedings relating to
the issuance of Depositary Shares, (b) the due execution and delivery of
a Deposit Agreement and (c) the due execution and delivery by the
Corporation of receipts evidencing interests in the Depositary Shares,
the Deposit Agreement will be a valid and binding agreement of the
Corporation and the Depositary Shares will be validly authorized and
issued, fully paid and non-assessable.
The foregoing opinions assume that (a) the consideration designated in the
applicable Corporate Proceedings for any Security shall have been received by
the Corporation in accordance with applicable law; (b) any Deposit Agreement or
Warrant Agreement shall have been duly authorized, executed, and delivered by
all parties thereto other than the Corporation; (c) the Registration Statement
shall have become effective under the Securities Act; and (d) the Indenture
shall remain qualified under the Trust Indenture Act of 1939, as amended. To the
extent they
<PAGE>
Dayton Hudson Corporation
January 23, 1996
Page 4
relate to enforceability, each of the foregoing opinions is subject to the
limitation that the provisions of the referenced instruments and agreements may
be limited by bankruptcy or other laws of general application affecting the
enforcement of creditors' rights and by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
I have also assumed (a) the accuracy and truthfulness of all public records of
the Corporation and of all certifications, documents and other proceedings
examined by me that have been produced by officials of the Corporation acting
within the scope of their official capacities, without verifying the accuracy or
truthfulness of such representations and (b) the genuineness of such signatures
appearing upon such public records, certifications, documents and proceedings. I
express no opinion as to the laws of any jurisdiction other than the laws of the
State of Minnesota and the federal laws of the United States of America. To the
extent that the governing law provison of a Deposit Agreement or a Warrant
Agreement may relate to the laws of a jurisdiction as to which I express no
opinion, the opinions set forth herein are given as if the law of Minnesota
governs the Deposit Agreement and the Warrant Agreements.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to being named in the Prospectus included therein under the
caption "Validity of Securities" with respect to the matters stated therein
without implying or admitting that I am an "expert" within the meaning of the
Securities Act, or other rules and regulations of the Securities and Exchange
Commission issued thereunder with respect to any part of the Registration
Statement, including this exhibit.
Very truly yours,
/s/ Timothy R. Baer
Timothy R. Baer
Assistant General Counsel
<PAGE>
EXHIBIT (12)
DAYTON HUDSON CORPORATION AND SUBSIDIARIES
COMPUTATIONS OF RATIOS OF EARNINGS TO FIXED CHARGES AND
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(Millions of Dollars)
<TABLE>
<CAPTION>
Nine Months Ended Fiscal Year Ended
---------------------- --------------------------------------------------------------
Oct. 28, Oct. 29, Jan. 28, Jan. 29, Jan. 30, Feb. 1, Feb. 2,
1995 1994 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Earnings:
Consolidated net earnings................ $ 83 $ 155 $ 434 $ 375 $ 383 $ 301 $ 412
Income taxes............................. 53 99 280 232 228 171 249
----- ----- ------ ------ ------ ----- ------
Total earnings....................... 136 254 714 607 611 472 661
----- ----- ------ ------ ------ ----- ------
Fixed charges:
Interest expense......................... 341 328 439 459 454 421 333
Interest portion of rental expense....... 48 38 56 45 43 39 46
----- ----- ------ ------ ------ ----- ------
Total fixed charges.................. 389 366 495 504 497 460 379
----- ----- ------ ------ ------ ----- ------
Less:
Capitalized interest..................... (11) (5) (7) (5) (6) (11) (8)
----- ----- ------ ------ ------ ----- ------
Fixed charges in earnings............ 378 361 488 499 491 449 371
----- ----- ------ ------ ------ ----- ------
Earnings available for fixed charges...... $ 514 $ 615 $1,202 $1,106 $1,102 $ 921 $1,032
===== ===== ====== ====== ====== ===== ======
Ratio of earnings to fixed charges........ 1.32 1.68 2.43 2.19 2.22 2.00 2.72
===== ===== ====== ====== ====== ===== ======
Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends:
Total fixed charges, as above............. $ 389 $ 366 $ 495 $ 504 $ 497 $ 460 $ 379
Dividends on preferred stock
(pre-tax basis)...................... 28 29 39 39 39 39 39
----- ----- ------ ------ ------ ----- ------
Total fixed charges and preferred
stock dividends...................... 417 395 534 543 536 499 418
----- ----- ------ ------ ----- ----- ------
Earnings available for fixed charges
and preferred stock dividends......... $ 514 $ 615 $1,202 $1,106 $1,102 $ 921 $1,032
===== ===== ====== ====== ====== ===== ======
Ratio of earnings to fixed charges
and preferred stock dividends......... 1.23 1.56 2.25 2.04 2.06 1.85 2.47
===== ===== ====== ====== ====== ===== ======
</TABLE>
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Dayton Hudson
Corporation for the registration of $1,000,000,000 in various debt and equity
securities (under a universal shelf registration) and to the incorporation by
reference therein of our report dated March 17, 1995, with respect to the
consolidated financial statements of Dayton Hudson Corporation incorporated by
reference in its Annual Report (Form 10-K) for the year ended January 28, 1995
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
Minneapolis, Minnesota
January 22, 1996
<PAGE>
Exhibit 24
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Rand V. Araskog
----------------------------------------
Rand V. Araskog
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ L. DeSimone
----------------------------------------
Livio D. DeSimone
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Roger A. Enrico
----------------------------------------
Roger A. Enrico
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ William W. George
----------------------------------------
William W. George
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Roger L. Hale
----------------------------------------
Roger L. Hale
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Betty Ruth Hollander
----------------------------------------
Betty Ruth Hollander
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Michele J. Hooper
---------------------------------------
Michele J. Hooper
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Mary Patterson McPherson
----------------------------------------
Mary Patterson McPherson
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Solomon D. Trujillo
----------------------------------------
Solomon D. Trujillo
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Robert J. Ulrich
----------------------------------------
Robert J. Ulrich
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ John R. Walter
----------------------------------------
John R. Walter
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Stephen E. Watson
----------------------------------------
Stephen E. Watson
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
DAYTON HUDSON CORPORATION
(Exact name of Registrant as specified in its charter)
Minnesota 41-0215170
(State of Incorporation) (I.R.S. Employer
Identification No.)
777 Nicollet Mall
Minneapolis, MN 55402
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE>
GENERAL
-------
1. General Information Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any underwriter
for the obligor is an affiliate of the Trustee, describe each such
affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge
the obligor is not in default under any Indenture for which the Trustee acts
as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
of eligibility and qualification. Each of the exhibits listed below is
incorporated by reference from registration number 22-27000.
1. Copy of Articles of Association.
2. Copy of Certificate of Authority to Commence Business.
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).
4. Copy of existing By-Laws.
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published pursuant
to law or the requirements of its supervising or examining authority.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 16th day of January,
1996.
FIRST TRUST NATIONAL ASSOCIATION
[SEAL]
/s/ Eve D. Kaplan
---------------------------------
Eve D. Kaplan
Vice President
/s/ Richard H. Prokosch
- ---------------------------------
Richard H. Prokosch
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: January 16, 1996
FIRST TRUST NATIONAL ASSOCIATION
/s/ Eve D. Kaplan
--------------------------------
Eve D. Kaplan
Vice President
