<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 21, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
DIGITAL EQUIPMENT CORPORATION
(Exact name of Registrant as specified in its charter)
<S> <C>
MASSACHUSETTS 04-2226590
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
146 MAIN STREET, MAYNARD, MASSACHUSETTS 01754-25711
(508) 493-5111
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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GAIL S. MANN, ESQ.
SECRETARY AND CLERK
DIGITAL EQUIPMENT CORPORATION
MSO2-3/F13
111 Powdermill Road
Maynard, Massachusetts 01754
(508) 493-2206
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
<TABLE>
<S> <C>
RICHARD J. TESTA, ESQ. RICHARD E. FLOOR, ESQ.
TESTA, HURWITZ & THIBEAULT GOODWIN, PROCTER & HOAR
Exchange Place Exchange Place
53 State Street 53 State Street
Boston, Massachusetts 02109 Boston, Massachusetts 02109
(617) 248-7000 (617) 570-1000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as the
Registrant shall determine.
------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities...................
Preferred Stock...................
Depositary Shares.................
Common Stock(3)...................
Warrants to Purchase Securities...
Total........................ (2) (2) $1,000,000,000 $ 344,828
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Not applicable pursuant to General Instruction II(d) to Form S-3 under the
Securities Act of 1933.
(3) The Registrant is registering an indeterminable number of shares of Common
Stock as may be issued, from time to time, upon exercise of Warrants to
purchase Common Stock or upon conversion of convertible Preferred Stock or
convertible Debt Securities.
</TABLE>
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 21, 1994
PROSPECTUS
DIGITAL EQUIPMENT CORPORATION
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS TO PURCHASE SECURITIES
------------------------
Digital Equipment Corporation (the "Corporation") may offer from time to
time together or separately up to $1,000,000,000 in the aggregate of (a) its
unsecured debt securities (the "Debt Securities"), which may be either senior
debt securities (the "Senior Debt Securities") or subordinated debt securities
(the "Subordinated Debt Securities"), (b) shares of preferred stock, par value
$1.00 per share (the "Preferred Stock"), of the Corporation in one or more
series, (c) depositary shares of the Corporation (the "Depositary Shares"), or
(d) warrants to purchase capital stock or Debt Securities of the Corporation or
other securities (the "Warrants"), each on terms to be determined at the time of
sale. The Subordinated Debt Securities may be issued as convertible debt
securities which may be convertible into shares of common stock of the
Corporation, par value $1.00 per share (the "Common Stock"), or other
securities. The Debt Securities, the Preferred Stock, the Depositary Shares and
the Warrants are collectively referred to herein as the "Securities."
When a particular series of Securities is offered, a supplement to this
Prospectus (each a "Prospectus Supplement") will be delivered with the
Prospectus. For Debt Securities, the Prospectus Supplement will set forth with
respect to such series (the "Offered Debt Securities"): the designation
(including whether senior or subordinated and whether convertible); aggregate
principal amount; authorized denominations; maturity; rate or rates (or method
of determining the same) and the time or times of payment of any interest;
purchase price; any optional or mandatory redemption provisions; any sinking
fund provisions; any terms regarding payment in or on the basis of currencies
other than U.S. dollars (including composite currencies); provisions relating to
any conversion or exchange feature of the Offered Debt Securities; and any other
specific terms of the Offered Debt Securities. For Preferred Stock and
Depositary Shares, the Prospectus Supplement will set forth with respect to such
series (the "Offered Preferred Stock" or the "Offered Depositary Shares"): the
designation, rights, preferences and limitations, including rate or rates (or
method of determining the same) and the time or times of payment of dividends;
voting rights, if any; liquidation preference; any conversion, exchange,
redemption or sinking fund provisions; and any other specific terms of the
Offered Preferred Stock or the Offered Depositary Shares. In addition, with
respect to the Offered Depositary Shares, the Prospectus Supplement will set
forth the fraction of a share of Preferred Stock represented by each of the
Offered Depositary Shares. For Warrants, the Prospectus Supplement will set
forth with respect to such series (the "Offered Warrants"): the description of
the securities for which the Offered Warrants will be exercisable and the
offering price, exercise price, duration, detachability, call provisions and any
other specific terms of the Offered Warrants.
The Securities may be sold directly by the Corporation, through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution." If any such agents or underwriters are involved in the sale of
any Securities, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the applicable Prospectus
Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is , 1994.
<PAGE> 3
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at Seven World
Trade Center, 13th Floor, New York, New York 10048 and Northwest Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such material can also be obtained upon written request from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, certain of the Corporation's securities
are listed on the New York Stock Exchange, the Pacific Stock Exchange, the
Chicago Stock Exchange and the Montreal Exchange, and the aforementioned
materials may also be inspected at the offices of such exchanges at 20 Broad
Street, New York, New York; 301 Pine Street, San Francisco, California; 440
South LaSalle Street, Chicago, Illinois; and La Tour de la Bourse, P.O. Box 61,
800 Victoria Square, Montreal, Quebec H4Z1A9 Canada, respectively.
The Corporation has filed with the Commission a registration statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities offered hereby (the "Registration Statement").
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Securities and the Corporation, reference is made to the Registration
Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation's Annual Report on Form 10-K for the fiscal year ended July
3, 1993 and the Corporation's Quarterly Report on Form 10-Q for the quarter
ended October 2, 1993 filed with the Commission (File No. 1-5296) pursuant to
the Exchange Act and the documents incorporated by reference therein are
incorporated herein by reference.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities 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 herein or in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Corporation will provide, without charge, to each person to whom a copy
of this Prospectus is delivered, on the written or oral request of such person,
a copy of any or all of the documents incorporated herein by reference (other
than exhibits thereto, unless such exhibits are specifically incorporated by
reference into such documents). Written requests for such copies should be
directed to Inquiry Section, Digital Equipment Corporation, 44 Whitney Street
(NR02/H3), Northborough, MA 01532-2599. Telephone requests should be directed to
Investor Relations Department, Digital Equipment Corporation, 146 Main Street
(ML03-2/T98), Maynard, Massachusetts 01754, telephone (508) 493-7182.
2
<PAGE> 4
THE COMPANY
The Corporation is one of the world's largest suppliers of networked
computer systems, software and services and a leader in interactive, distributed
computing and multivendor systems integration in open computing environments.
The Corporation offers a full range of desktop, client-server and production
systems and related peripheral equipment, software and services used in a wide
variety of applications and industries. The Corporation conducts operations in
approximately 100 countries and derives more than 60% of its revenues from
outside of the United States.
The Corporation's principal executive offices are located at 146 Main
Street, Maynard, Massachusetts 01754-2517, and its telephone number is (508)
493-5111.
<TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
the Corporation and its consolidated subsidiaries for each of the years in the
five year period ended July 3, 1993 and for the six months ended January 1, 1994
and December 26, 1992.
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
-------------------------------------------------- -------------------------
JULY 3, JUNE 27, JUNE 29, JUNE 30, JULY 1, JANUARY 1, DECEMBER 26,
1993 1992 1991 1990 1989 1994 1992
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (unaudited)(a)......... (b) (c) (d) 1.6x(e) 8.5x (f) (g)
<FN>
- ---------------
(a) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and "fixed charges." "Fixed
charges" include interest on indebtedness and one-third of all rental expense,
excluding rent on capitalized leases (being deemed representative of the
interest factor in rental expense).
(b) Earnings were inadequate to cover fixed charges by $229 million.
(c) Earnings were inadequate to cover fixed charges by $2,078 million and
by $578 million excluding restructuring charges.
(d) Earnings were inadequate to cover fixed charges by $519 million; the
ratio would have been 3.6x excluding restructuring charges.
(e) The ratio would have been 4.3x excluding restructuring charges.
(f) Earnings were inadequate to cover fixed charges by $169 million.
(g) Earnings were inadequate to cover fixed charges by $316 million.
</TABLE>
3
<PAGE> 5
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Corporation intends to use the net proceeds from the sale of the Securities for
working capital and for other general corporate purposes, which may include the
financing of capital expenditures and possible acquisitions of, or investments
in, businesses and assets.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Corporation may offer Debt Securities consisting of Senior Debt
Securities and/or Subordinated Debt Securities. Senior Debt Securities may be
issued from time to time in series under an indenture, dated as of September 15,
1992, as supplemented from time to time, between the Corporation and Citibank,
N.A., as trustee (the "Senior Trustee"), a copy of which is incorporated by
reference into the Registration Statement of which this Prospectus is a part
(the "Senior Indenture"). Subordinated Debt Securities may be issued from time
to time in series under an indenture to be dated as of January 21, 1994, as
supplemented from time to time, between the Corporation and Bankers Trust
Company, as trustee (the "Subordinated Trustee"), a copy of which has been filed
as an exhibit to the Registration Statement of which this Prospectus is a part
(the "Subordinated Indenture"). The Senior Indenture and the Subordinated
Indenture are sometimes referred to collectively as the "Indentures," and the
Senior Trustee and the Subordinated Trustee are sometimes referred to
collectively as the "Trustees." The Subordinated Debt Securities may be
convertible into shares of Common Stock of the Corporation or exchangeable for
other securities as set forth in the applicable Prospectus Supplement. The
Indentures do not limit the aggregate principal amount of Debt Securities which
may be issued by the Corporation thereunder and provide that the Debt Securities
may be issued in one or more series. The statements under this caption are
summaries of certain provisions contained in the Indentures, do not purport to
be complete and are qualified in their entirety by reference to the Indentures.
Capitalized terms used herein and not defined shall have the meanings assigned
to them in the applicable Indenture. Section references referred to below,
unless otherwise noted, refer to the respective Sections of both Indentures. The
following summaries set forth certain general terms and provisions of the
Indentures and the Debt Securities. Further terms of the Offered Debt Securities
will be set forth in the applicable Prospectus Supplement.
The Debt Securities will be direct, unsecured obligations of the
Corporation. The indebtedness represented by the Senior Debt Securities will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Corporation. The indebtedness represented by the Subordinated Debt Securities
will be subordinated in right of payment to the prior payment in full of the
Senior Indebtedness of the Corporation as described under "Ranking of Debt
Securities." The particular terms of the Offered Debt Securities will be
described in the applicable Prospectus Supplement, along with any applicable
modifications of or additions to the general terms of the Debt Securities as
described herein and in the applicable Indenture and any applicable federal
income tax considerations. Accordingly, for a description of the terms of the
Offered Debt Securities, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities set forth
in this Prospectus.
The applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (a) the title of the Offered Debt Securities and
whether such Offered Debt Securities are Senior Debt Securities or Subordinated
Debt Securities; (b) any limit on the aggregate principal amount of the Offered
Debt Securities; (c) the price (expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Debt Securities will be issued;
(d) the date or dates on which the principal of the Offered Debt Securities will
be payable; (e) the rate or rates (which may be fixed or variable) at which the
Offered Debt Securities will bear any interest (or the method of determining the
same) and the date or dates from which such interest will accrue; (f) the dates
on which any interest on the Offered Debt Securities will be payable and the
Regular Record Dates for the interest payable on such Interest Payment Dates;
(g) any mandatory or optional sinking fund or analogous provisions; (h) the
period or periods within which and the price or prices at
4
<PAGE> 6
which the Offered Debt Securities may, pursuant to any optional or mandatory
redemption provisions (including any provisions for redemption or repurchase at
the option of the holder), be redeemed and the other terms and conditions of any
such optional or mandatory redemption; (i) if the Offered Debt Securities are
Original Issue Discount Securities, the amount of principal payable upon
acceleration of such Original Issue Discount Securities following an Event of
Default; (j) the currency or currencies, which may be a composite currency such
as the European Currency Unit, in which payment of the principal of (and
premium, if any) and/or interest on the Offered Debt Securities will be payable
if other than the currency of the United States; (k) any currency (including
composite currencies) other than the stated currency of the Debt Securities in
which the principal of (and premium, if any) and/or interest on the Offered Debt
Securities may, at the election of the Corporation or the holders, be payable,
and the periods within which, and terms and conditions upon which, such election
may be made; (1) the manner in which the amount of payments of principal of (and
premium, if any) and/or interest on the Offered Debt Securities is to be
determined if such determination is to be made with reference to an index; (m)
whether the Offered Debt Securities are to be issued in the form of one or more
Global Securities, and, if so, the identity of the depositary for such series
(the "Debt Depositary"); (n) if the Offered Debt Securities are to be issued
upon the exercise of Warrants, the time, manner and place for such Offered Debt
Securities to be authenticated and delivered; (o) any deletions from,
modifications of or additions to the Events of Default or covenants of the
Corporation with respect to the Offered Debt Securities, whether or not such
Events of Default or covenants are consistent with the Events of Default or
covenants set forth in the general provisions of the applicable Indenture, and
any change in the right of any Trustee or any of the holders to declare the
principal amount of any of the Offered Debt Securities due and payable; (p) if
the Offered Debt Securities are Subordinated Debt Securities, whether they will
be convertible into Common Stock of the Corporation or exchangeable for other
securities, and, if so, the terms and conditions upon which the Offered Debt
Securities will be so convertible or exchangeable, including the conversion or
exchange price and the conversion or exchange period; (q) any other terms of the
Offered Debt Securities.
If so provided in the applicable Prospectus Supplement, Debt Securities may
be issued as Original Issue Discount Securities to be sold at a substantial
discount below their principal amount. In such cases, special Federal income tax
and other considerations applicable to such Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
EXCHANGE AND TRANSFER
At the option of the holder, subject to the terms of the applicable
Indenture and the limitations applicable to Global Securities, Debt Securities
of each series may be exchanged for other Debt Securities of the same series of
any authorized denomination and of a like tenor and aggregate principal amount.
Subject to the terms of the applicable Indenture and the limitations applicable
to Global Securities, Debt Securities issued in fully registered form may be
presented for exchange as provided above or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed) at the
office of the applicable Trustee or other security registrar or at the office of
any transfer agent designated by the Corporation for such purpose. No service
charge will be made for any registration of transfer or exchange of such Debt
Securities, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the security registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request.
If the Debt Securities of any series are to be redeemed in part, the
Corporation will not be required to (i) issue, register the transfer of, or
exchange any Debt Security of that series during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption
of any such Debt Security that may be selected for redemption and ending at the
close of business on the day of such mailing, or (ii) register the transfer of
or exchange any Debt Security so selected for redemption, in whole or in part,
except the unredeemed portion of any such Debt Security being redeemed in part.
5
<PAGE> 7
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Debt Depositary or a nominee
thereof identified in the applicable Prospectus Supplement, will be deposited
with such Debt Depositary or nominee or a custodian therefor and will bear a
legend regarding the restrictions on exchange and registration of transfer
thereof referred to below and any such other matters as may be provided for
pursuant to the applicable Indenture.
Notwithstanding any provision of the applicable Indenture or any security
described herein, no Global Security may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Debt Depositary
for such Global Security or any nominee of such Debt Depositary, unless (i) the
Debt Depositary has notified the Corporation that it is unwilling or unable to
continue as Debt Depositary for such Global Security or has ceased to be
qualified to act as such as required by the applicable Indenture, (ii) there
shall have occurred and be continuing an Event of Default with respect to the
Debt Securities represented by such Global Security, or (iii) there shall exist
such circumstances, if any, in addition to or in lieu of those described above
as may be described in the applicable Prospectus Supplement. All Debt Securities
issued in exchange for a Global Security or any portion thereof will be
registered in such names as the Debt Depositary may direct.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Debt Depositary or its nominee
("participants") and to the persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the Debt
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Debt
Depositary (with respect to participants' interest) or any such participant
(with respect to interests of persons held by such participants on their
behalf). Payments, transfers, exchanges and other matters relating to beneficial
interests in a Global Security may be subject to various policies and procedures
adopted by the Debt Depositary from time to time.
As long as the Debt Depositary, or its nominee, is the registered holder of
a Global Security, the Debt Depositary or such nominee, as the case may be, will
be considered the sole owner and holder of such Global Security and the Debt
Securities represented thereby for all purposes under the terms of the Debt
Securities and the applicable Indenture. Except in the limited circumstances
referred to above, owners of beneficial interests in a Global Security will not
receive or be entitled to receive physical delivery of certificated Debt
Securities in exchange therefor and will not be considered to be the owners or
holders of such Global Security or any Debt Securities represented thereby for
any purpose under the Debt Securities or the applicable Indenture. All payments
of principal of and any premium and interest on a Global Security will be made
to the Debt Depositary or its nominee, as the case may be, as the holder
thereof. The Corporation expects that the Debt Depositary, upon receipt of any
payment of principal, premium or interest, will credit participants' accounts on
the payment date with payments in amounts proportionate to their respective
beneficial interest in the principal amount of a Global Security for such Debt
Securities as shown on the records of the Debt Depositary. The Corporation also
expects that payments by participants to owners of beneficial interests in such
Global Security held through them will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such participants. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
definitive form. These laws may impair the ability to transfer beneficial
interests in a Global Security. None of the Corporation, any Trustee or any
agent of the Corporation or any Trustee will have any responsibility or
liability for any aspect of the Debt Depositary's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interest.
6
<PAGE> 8
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Security, in some cases, may trade in the Debt Depositary's same-day
funds settlement system, in which case, secondary market trading activity in
those beneficial interests would be required by the Debt Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Global Security upon the original issuance thereof may be
required to be made in immediately available funds.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any interest payment date will be made to the
Person in whose name such Debt Security is registered at the close of business
on the Regular Record Date for such interest. Unless otherwise indicated in the
applicable Prospectus Supplement, principal of and any premium and interest on
the Debt Securities of a particular series will be payable at the office of such
paying agent or paying agents as the Corporation may designate for such purpose
from time to time, except that, at the option of the Corporation, payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the security register.
All moneys paid by the Corporation to a paying agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Corporation, and the holder of such
Debt Security thereafter may look only to the Corporation for payment thereof.
EVENTS OF DEFAULT
Unless otherwise set forth in the applicable Prospectus Supplement, the
following are Events of Default under the Indentures with respect to Debt
Securities of any series: (a) failure to pay any interest on any Debt Security
of that series when due, continued for 30 days; (b) failure to pay principal of
or any premium on any Debt Security of that series when due; (c) failure to
deposit any sinking fund payment when due in respect of any Debt Security of
that series; (d) failure to perform any other covenant of the Corporation in the
applicable Indenture (other than a covenant included in such Indenture solely
for the benefit of series of Debt Securities other than that series) continued
for 90 days after written notice as provided in the applicable Indenture; (e)
certain events in bankruptcy or of insolvency or reorganization involving the
Corporation; and (f) any other Event of Default provided with respect to Debt
Securities of that series in the applicable Prospectus Supplement. (Section 501)
If an Event of Default with respect to Debt Securities of any series occurs and
is continuing, either the Trustee or the holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Debt Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the holders
of a majority in aggregate principal amount of outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502)
The Indentures provide that, subject to the duty of the Trustees during
default to act with the required standard of care, the Trustees will be under no
obligation to exercise any of their respective rights or powers under the
Indentures at the request or direction of any of the holders of Debt Securities,
unless such holders shall have offered to the Trustees reasonable indemnity.
(Section 603) Subject to such provisions for the indemnification of the
Trustees, the holders of a majority in aggregate principal amount of the
outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable Trustee, or exercising any trust or power conferred on such
Trustee, with respect to the Debt Securities of that series. (Section 512)
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The Corporation is required to furnish to the Trustees annually a statement
as to the performance by the Corporation of certain of its obligations under the
Indentures and as to any default in such performance. (Section 1007)
COVENANTS OF THE CORPORATION
The applicable Prospectus Supplement will describe any material covenants
in respect of a series of Debt Securities. The general provisions of the
Indentures do not contain any provisions that would limit the ability of the
Corporation to incur indebtedness or that would afford holders of Debt
Securities protection in the event of a highly leveraged or similar transaction
involving the Corporation.
Unless otherwise indicated in the applicable Prospectus Supplement, Senior
Debt Securities will include the following covenants of the Corporation:
LIMITATION ON LIENS.
The Corporation will not issue, incur, create, assume or guarantee,
and will not permit any Restricted Subsidiary to issue, incur, create,
assume or guarantee, any debt for money borrowed secured by a mortgage,
security interest, pledge, lien, charge or other encumbrance ("Mortgages")
upon any Principal Property of the Corporation or any Restricted Subsidiary
or upon any shares of stock or indebtedness of any Restricted Subsidiary
(whether such Principal Property, shares or indebtedness are now existing
or owed or hereafter created or acquired) without in each such case
effectively providing concurrently with the issuance, incurrence, creation,
assumption or guaranty of any such secured debt, or the grant of a mortgage
with respect to any such indebtedness, that the Senior Debt Securities
(together with, if the Corporation shall so determine, any other
indebtedness of or guarantee by the Corporation or such Restricted
Subsidiary ranking equally with the Senior Debt Securities) shall be
secured equally and ratably with such secured debt. The foregoing
restriction, however, will not apply to: (a) Mortgages on property, shares
of stock or indebtedness or other assets of any corporation existing at the
time such corporation becomes a Restricted Subsidiary; (b) Mortgages
existing at the time of acquisition of such property by the Corporation or
a Restricted Subsidiary or Mortgages to secure the payment of all or any
part of the purchase price of such property upon the acquisition thereof or
to secure debt incurred prior to, at the time of, or within 180 days after,
the acquisition of such property for the purpose of financing all or part
of the purchase price thereof, or Mortgages to secure the cost of
improvements to such acquired property or the cost of construction of such
property; (c) Mortgages to secure indebtedness of a Restricted Subsidiary
owing to the Corporation or another Restricted Subsidiary; (d) Mortgages
existing at the date of the Senior Indenture; (e) Mortgages on property of
a corporation existing at the time such corporation is merged into or
consolidated with the Corporation or a Restricted Subsidiary or at the time
of a sale, lease or other disposition of the properties of a corporation as
an entirety or substantially as an entirety to the Corporation or a
Restricted Subsidiary; (f) certain Mortgages in favor of governmental
entities; or (g) extensions, renewals or replacements of any Mortgage
referred to in the foregoing clauses (a) through (f); provided, however,
that any Mortgages permitted by any of the foregoing clauses (a), (b), (c),
(d), (e) and (f) shall not extend to or cover any property of the
Corporation or such Restricted Subsidiary, as the case may be, other than
the property specified in such clauses and improvements thereto. (Section
1010)
Notwithstanding the restrictions outlined in the preceding paragraph,
the Corporation or any Restricted Subsidiary will be permitted to issue,
incur, create, assume or guarantee debt secured by a Mortgage which would
otherwise be subject to such restrictions, without equally and ratably
securing the Senior Debt Securities, provided that after giving effect
thereto, the aggregate amount of all debt so secured by Mortgages (not
including Mortgages permitted under clauses (a) through (g) above) does not
exceed 10% of the Consolidated Net Tangible Assets of the Corporation.
(Section 1010)
LIMITATION ON SALE AND LEASE-BACK.
The Corporation will not, nor will it permit any Restricted Subsidiary
to, enter into any sale and lease-back transaction with respect to any
Principal Property, other than any such transaction involving a
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lease for a term of not more than three years or any such transaction
between the Corporation and a Restricted Subsidiary or between Restricted
Subsidiaries, unless: (a) the Corporation or such Restricted Subsidiary
would be entitled to incur indebtedness secured by a Mortgage on the
Principal Property involved in such transaction at least equal in amount to
the Attributable Debt with respect to such sale and lease-back transaction,
without equally and ratably securing the Senior Debt Securities, pursuant
to the limitation in the Senior Indenture on liens; or (b) the Corporation
shall apply an amount equal to the greater of the net proceeds of such sale
or the Attributable Debt with respect to such sale and lease-back
transaction within 120 days to the retirement (other than any mandatory
retirement or by payment at maturity) of debt for money borrowed of the
Corporation or a Restricted Subsidiary that matures more than twelve months
after the creation of such indebtedness. (Section 1011)
DEFEASANCE AND DISCHARGE OF DEBT SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions will apply to Debt Securities under the Indentures: the
Corporation, at its option (a) will be discharged from any and all obligations
in respect to any series of Debt Securities (except for certain obligations to
register the transfer or exchange of such Debt Securities, to replace stolen,
lost or mutilated Debt Securities, to maintain paying agencies and to hold
monies for payment in trust and, with respect to Subordinated Debt Securities
which are convertible or exchangeable, the right to convert or exchange); or (b)
need not comply with certain restrictive covenants of the Indentures in respect
of such series of Debt Securities, in either case upon the deposit with the
Trustee (and in the case of a discharge, 91 days after such deposit), in trust,
of money and/or U.S. Government Obligations (as defined in the Indentures) which
through the payment of interest and principal in respect thereof in accordance
with their terms, without regard to any reinvestment thereof, will provide money
in an amount sufficient to pay the principal of and each installment of interest
on such Debt Securities on the Stated Maturity of such payments in accordance
with the terms of the applicable Indenture and such Debt Securities. In the case
of discharge under clause (a), such a trust may be established only if, among
other things, the Corporation has received from, or there has been published by,
the Internal Revenue Service a ruling, or there has otherwise been a change in
law, to the effect that holders of such Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amounts and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred. (Section
403) In the event of any such discharge under clause (a), the holders of such
Debt Securities would thereafter be able to look only to such trust fund for
payment of principal (and premium, if any) and interest.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indentures provide that the Corporation, without the consent of the
holders of any of the outstanding Debt Securities, may consolidate or merge with
or into, or transfer or lease its assets as an entirety or substantially as an
entirety to, any corporation or may acquire or lease the assets of any person,
provided that: (a) the corporation formed by such consolidation or into which
the Corporation is merged or which acquires or leases the assets of the
Corporation as an entirety or substantially as an entirety is organized under
the laws of any domestic jurisdiction and assumes the Corporation's obligations
on the Debt Securities and under the Indentures and, with respect to
Subordinated Debt Securities which are convertible or exchangeable, provides for
conversion or exchange rights in accordance with the Subordinated Indenture; (b)
immediately after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and (c) certain other conditions
are met. Upon compliance with these provisions by a successor corporation, the
Corporation would be relieved of its obligations under the Indentures and the
Debt Securities. (Sections 801 and 802)
The Senior Indenture also provides that, if upon any such consolidation,
merger, sale, conveyance or lease, any Principal Property would become subject
to any Mortgage, the Corporation or such successor corporation will be obligated
under such Senior Indenture to cause the Senior Debt Securities to be secured
equally and ratably with (or, at the Corporation's or such successor
corporation's option, prior to) any indebtedness secured by such Mortgage.
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MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the
Corporation and the applicable Trustee with the consent of the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
each series affected by such modification or amendment; provided, however, that
no such modification or amendment may, without the consent of the holder of each
outstanding Debt Security affected thereby: (a) change the stated maturity date
of the principal of, any installment of principal or interest on, or sinking
fund payments in respect of, such Debt Security; (b) alter the redemption or
conversion provisions of such Debt Security in a manner materially adverse to
the holder thereof; (c) reduce the principal amount of, or any premium or
interest on, such Debt Security; (d) reduce the amount of principal of an
Original Issue Discount Security payable upon acceleration of the maturity
thereof; (e) change the place or currency of payment of principal of, or any
premium or interest on, such Debt Security; (f) impair the right to institute
suit for the enforcement of any payment on or with respect to such Debt
Security; (g) with respect to Subordinated Debt Securities which are convertible
or exchangeable, adversely affect the right to convert or exchange any such
Subordinated Debt Security; (h) with respect to Subordinated Debt Securities,
modify the provisions of the Subordinated Indenture with respect to
subordination in a manner materially adverse to the Subordinated Debt
Securities; or (i) reduce the percentage in principal amount of outstanding Debt
Securities of any series the consent of the holders of which is required for
modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of such Indenture or for waiver of certain
defaults. (Section 902)
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned: (a) compliance by
the Corporation with certain restrictive provisions of the applicable Indenture;
or (b) any past default under the applicable Indenture, except a default in the
payment of principal or any premium or interest and, with respect to any
Subordinated Debt Securities which are convertible or exchangeable, a default in
respect of the right to convert or exchange. (Sections 1008 and 513)
Modifications and amendments may be made by the Corporation and the Trustee
to the Indentures, without the consent of any holder of any Debt Security of any
series, to add covenants and Events of Default, and to make provisions with
respect to other matters and issues arising under the Indentures, provided that
any such provision does not adversely affect the rights of the holders of Debt
Securities of any series. (Section 901)
RANKING OF DEBT SECURITIES
The Senior Debt Securities will be unsecured and unsubordinated obligations
of the Corporation and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation.
Unless otherwise provided in the applicable Prospectus Supplement,
Subordinated Debt Securities will be subject to the following subordination
provisions.
The payment of the principal of, interest on, or any other amounts due on,
the Subordinated Debt Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined below) of the
Corporation. (Section 1601) No payment on account of the principal of,
redemption of, interest on or any other amounts due on the Subordinated Debt
Securities and no redemption, purchase or other acquisition of the Subordinated
Debt Securities may be made, unless (i) full payment of amounts then due for
principal, sinking funds, interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Corporation, whether or not a claim for such post-petition interest is allowed
in such proceeding), penalties, reimbursement or indemnification amounts, fees
and expenses, and of all other amounts then due on all Senior Indebtedness shall
have been made or duly provided for pursuant to the terms of the instrument
governing such Senior Indebtedness, and (ii) at the time of, or immediately
after giving effect to, any such payment, redemption, purchase or other
acquisition, there shall not exist under any Senior Indebtedness or any
agreement pursuant to which any Senior Indebtedness has been issued, any default
which shall not have been cured or waived and which shall have resulted in the
full amount of such Senior Indebtedness being declared due and payable. In
addition, the Subordinated Indenture
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provides that, if holders of any Senior Indebtedness notify the Corporation and
the Subordinated Trustee that a default has occurred giving the holders of such
Senior Indebtedness the right to accelerate the maturity thereof, no payment on
account of principal, sinking fund or other redemption, interest or any other
amounts due on the Subordinated Debt Securities and no purchase, redemption or
other acquisition of the Subordinated Debt Securities will be made for the
period (the "Payment Blockage Period") commencing on the date such notice is
received and ending on the earlier of (A) the date on which such event of
default shall have been cured or waived or (B) 180 days from the date such
notice is received. (Section 1603) Notwithstanding the foregoing, only one
payment blockage notice with respect to the same event of default or any other
events of default existing and known to the person giving such notice at the
time of such notice on the same issue of Senior Indebtedness may be given during
any period of 360 consecutive days. (Section 1603) No new Payment Blockage
Period may be commenced by the holders of Senior Indebtedness during any period
of 360 consecutive days unless all events of default which triggered the
preceding Payment Blockage Period have been cured or waived. (Section 1603) Upon
any distribution of its assets in connection with any dissolution, winding-up,
liquidation or reorganization of the Corporation, all Senior Indebtedness must
be paid in full before the holders of the Subordinated Debt Securities are
entitled to any payments whatsoever. (Section 1602)
The Subordinated Indenture does not restrict the amount of Senior
Indebtedness or other indebtedness of the Corporation or any subsidiary of the
Corporation. As a result of these subordination provisions, in the event of the
Corporation's insolvency, holders of the Subordinated Debt Securities may
recover ratably less than general creditors of the Corporation.
CONVERTIBLE OR EXCHANGEABLE SUBORDINATED DEBT SECURITIES
The terms and conditions, if any, on which any series of Subordinated Debt
Securities are convertible into Common Stock of the Corporation or exchangeable
for other securities will be set forth in the applicable Prospectus Supplement.
Such terms will include the conversion price or exchange rate, the conversion or
exchange period and the manner in which the right to convert or exchange may be
exercised, the events requiring an adjustment of the conversion or exchange
price and provisions affecting conversion or exchange in the event of the
redemption of the convertible or exchangeable Subordinated Debt Securities.
(Sections 1701, 1702 and 1704) With respect to Subordinated Debt Securities
which are exchangeable for marketable securities issued by persons other than
the Corporation, the applicable Prospectus Supplement shall also set forth any
arrangements for the deposit of the securities deliverable in exchange for
Subordinated Debt Securities in escrow with an independent financial
institution, provisions with respect to the receipt of cash dividends or other
income on such securities and the exercise of voting and other rights with
respect to the ownership of such securities and any tax and other special
considerations applicable to the exercise of the right to exchange, if any.
(Sections 1701, 1702 and 1708)
CERTAIN DEFINITIONS
"Attributable Debt" when used in connection with a sale and lease-back
transaction involving a Principal Property means, at the time of determination,
the lesser of: (a) the fair value of such property (as determined in good faith
by the Board of Directors of the Corporation); or (b) the present value of the
total net amount of rent required to be paid under such lease during the
remaining term thereof (including any renewal term or period for which such
lease has been extended), discounted at the rate of interest set forth or
implicit in the terms of such lease. For purposes of the foregoing definition,
rent shall not include amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or contingent upon
maintenance and repair, insurance, taxes, assessments, water rates and similar
charges.
"Consolidated Net Tangible Assets" means, as of any particular time, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom: (a) all current liabilities except
for: (1) notes and loans payable, (2) current maturities of long-term debt, and
(3) current maturities of obligations under capital leases; and (b) certain
intangible assets, to the extent included in said aggregate amount of assets,
all as set forth on the most recent consolidated balance sheet of the
Corporation and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
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"Indebtedness" means, with respect to any person, (i) any obligation of
such person to pay the principal of, premium, if any, interest on (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such person, whether or not a claim for such
post-petition interest is allowed in such proceeding), penalties, reimbursement
or indemnification amounts, fees, expenses or other amounts relating to any
indebtedness of such person (A) for borrowed money (whether or not the recourse
of the lender is to the whole of the assets, of such person or only to a portion
thereof), (B) evidenced by notes, debentures or similar instruments (including
purchase money obligations) given in connection with the acquisition of any
property or assets (other than inventory or similar property acquired in the
ordinary course of business), including securities, for the payment of which
such person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary courses of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such person or performance bonds, (E) for the payment of
money relating to a Capitalized Lease Obligation (as defined in the Indenture),
or (F) under interest rate swaps, caps or similar agreements and foreign
exchange contracts, currency swaps or similar agreements; (ii) any liability of
others of the kind described in the preceding clause (i) which such person has
guaranteed or which is otherwise its legal liability; and (iii) any and all
deferrals, renewals, extensions and refunding of, or amendments, modifications
or supplements to, any liability of the kind described in any of the preceding
clauses (i) or (ii).
"Principal Property" means the principal corporate office and any
manufacturing plant or manufacturing facility (whether now owned or hereafter
acquired) which: (a) is owned by the Corporation or any Restricted Subsidiary;
(b) is located within the United States of America; and (c) has not been
determined in good faith by the Board of Directors of the Corporation not to be
materially important to the total business conducted by the Corporation and its
subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary which owns any Principal
Property; provided, however, that the term "Restricted Subsidiary" does not
include any Subsidiary which is principally engaged in leasing or in financing
receivables, or which is principally engaged in financing the Corporation's
operations outside the United States of America.
"Senior Indebtedness" means Indebtedness of the Corporation, whether
outstanding on the date of the Subordinated Indenture or thereafter created,
incurred, assumed or guaranteed by the Corporation, other than the following:
(1) any Indebtedness as to which, in the instrument evidencing such Indebtedness
or pursuant to which such Indebtedness was issued, it is expressly provided that
such Indebtedness is subordinate in right of payment to all indebtedness of the
Corporation not expressly subordinated to such Indebtedness; (2) any
Indebtedness which by its terms refers explicitly to the Subordinated Debt
Securities and states that such Indebtedness shall not be senior, shall be pari
passu or shall be subordinated in right of payment to the Subordinated Debt
Securities; and (3) with respect to any series of Subordinated Debt Securities,
any Indebtedness of the Corporation evidenced by Subordinated Debt Securities of
the same or of another series. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include: (a) Indebtedness of or amounts
owed by the Corporation for compensation to employees, or for goods or materials
purchased in the ordinary course of business, or for services, or (b)
Indebtedness of the Corporation to a subsidiary of the Corporation.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having the voting power to elect a majority of the board of
directors of such corporation is at the time owned, directly or indirectly, by
the Corporation or by one or more Subsidiaries, or by the Corporation and one or
more Subsidiaries.
CONCERNING THE TRUSTEES
Citibank, N.A. is the Senior Trustee under the Senior Indenture. Bankers
Trust Company is the Subordinated Trustee under the Subordinated Indenture. Each
of the Trustees has dealings with the Corporation in the ordinary course of
business and from time to time may also make loans to the Corporation and its
Subsidiaries. In addition, Citibank, N.A. has also been appointed as the
Preferred Stock Depositary. A Trustee may resign or be removed with respect to
one or more series of Debt Securities and a successor Trustee appointed with
respect to such series. (Section 610)
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The Corporation is authorized to issue up to 450,000,000 shares of Common
Stock and up to 25,000,000 shares of Preferred Stock which may be issued by the
Board of Directors of the Corporation from time to time. The particular terms of
any series of Preferred Stock offered hereunder will be described in the
applicable Prospectus Supplement. If so indicated in a Prospectus Supplement,
the terms of any such series may differ from the terms set forth below.
The following summary descriptions of capital stock and Rights (as defined
below) do not purport to be complete and are subject to, and qualified in their
entirety by reference to, the more complete descriptions thereof set forth in
the Corporation's Restated Articles of Organization, as amended (the "Restated
Articles"), the Certificate of Designation relating to each series of Preferred
Stock (the "Certificate of Designation"), the Corporation's By-laws, as amended,
and the Rights Plan (as defined below). The applicable Certificate of
Designation will be filed as an exhibit to or incorporated by reference in the
Registration Statement of which this Prospectus is a part at or prior to the
time of issuance of the Offered Preferred Stock.
DESCRIPTION OF COMMON STOCK
The Corporation's Restated Articles authorize the issuance of up to
450,000,000 shares of Common Stock. Each share of the Common Stock is entitled
to one vote at all meetings of stockholders for the election of directors and on
all other matters. Dividends may be paid to the holders of the Common Stock when
and if declared by the Board of Directors out of funds legally available
therefor. The Common Stock has no pre-emptive or similar rights. The holders are
not liable to further call or assessment. Upon liquidation, dissolution or
winding up of the affairs of the Corporation, its assets remaining after
provision for payment of creditors would be distributed pro rata among holders
of the Common Stock, subject to the preferential rights of any then outstanding
Preferred Stock.
The Common Stock is listed on the New York Stock Exchange, the Chicago
Stock Exchange, the German Stock Exchanges of Frankfurt, Munich and Berlin, the
Montreal Exchange, the Pacific Stock Exchange and the Swiss Exchanges of Zurich,
Geneva and Basel, and is admitted to unlisted trading privileges on the Boston
Stock Exchange, Cincinnati Stock Exchange, Luxembourg Stock Exchange and
Philadelphia Stock Exchange.
First Chicago Trust Company of New York is the transfer agent for the
Common Stock. The Corporation also serves as a co-transfer agent in connection
with the Corporation's various employee stock programs.
DESCRIPTION OF PREFERRED STOCK
The following sets forth certain general terms and provisions of the
Preferred Stock which would be offered hereby. Further terms of the Offered
Preferred Stock will be set forth in the applicable Prospectus Supplement.
The Corporation's Restated Articles authorize the issuance of up to
25,000,000 shares of Preferred Stock. As of the date of this Prospectus, no
shares of Preferred Stock are currently outstanding, and no shares are reserved
for issuance. Subject to limitations prescribed by law, the Board of Directors
is authorized at any time to issue one or more series of Preferred Stock; to
determine all designations, preferences and limitations for any such series; and
to determine the number of shares in any such series.
The Board of Directors is authorized to determine for each series of
Preferred Stock, and the Prospectus Supplement will set forth with respect to
such series, the following designations, preferences and limitations, if any:
the dividend rights, the redemption provisions, the rights upon liquidation,
dissolution or winding up of the Corporation, the conversion or exchange rights,
the sinking fund provisions, the voting rights, provided that the holders of
shares of Preferred Stock will not be entitled to more than one vote per share
when voting as a class with the holders of shares of Common Stock; and the other
preferences, powers, qualifications, special or
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relative rights and privileges and limitations or restrictions of such
preferences or rights, if any. No holders of shares of the capital stock of the
Corporation have any pre-emptive rights to acquire any securities of the
Corporation.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds of the Corporation
legally available for payment, dividends payable at such dates and at such rates
per share as set forth in the applicable Prospectus Supplement. The Prospectus
Supplement will also state applicable record dates regarding the payment of
dividends.
CONVERTIBILITY
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the related Prospectus
Supplement.
REDEMPTION AND SINKING FUND
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the related Prospectus Supplement.
LIQUIDATION
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of any series of Preferred Stock will be entitled to
receive the liquidation preference per share specified in the Prospectus
Supplement, if any, in each case together with any applicable accrued and unpaid
dividends and before any distribution to holders of the Common Stock or any
class of stock ranking junior to the Preferred Stock as to dividends and
liquidation preferences. In the event there are insufficient assets to pay such
liquidation preferences for all classes of Preferred Stock in full, the
remaining assets shall be allocated ratably among all series of Preferred Stock
based upon the aggregate liquidation preference for all outstanding shares for
such series. After payment of the full amount of the liquidation preference to
which they are entitled, the holders of shares of Preferred Stock will not be
entitled to any further participation in any distribution of assets by the
Corporation unless otherwise provided in a Prospectus Supplement, and, in such
case, the remaining assets of the Corporation shall be distributable exclusively
among the holders of the Common Stock and any class of stock ranking junior to
the Preferred Stock as to dividends and liquidation preferences, according to
their respective interests.
VOTING
No series of Preferred Stock will be entitled to vote except as provided
below or in the related Prospectus Supplement. The holders of shares of
Preferred Stock will not be entitled to more than one vote per share when voting
as a class with the holders of shares of Common Stock. Unless otherwise
specified in a Prospectus Supplement, the affirmative vote of the holders of
two-thirds of the outstanding shares of a series of Preferred Stock voting
separately is required to authorize any amendment, alteration or repeal of the
Restated Articles or of the Certificate of Designation which would adversely
affect the rights of any such class or series of Preferred Stock.
MISCELLANEOUS
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. Neither the par value nor the
liquidation preference is indicative of the price at which the Preferred Stock
will actually trade on or after the date of issuance. Payment of dividends on
any series of Preferred Stock may be restricted by loan agreements, indentures
and other transactions entered into by the Corporation. The transfer agent for
each series of Preferred Stock will be specified in the related Prospectus
Supplement.
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DESCRIPTION OF RIGHTS
On December 11, 1989, the Board of Directors unanimously adopted a
Stockholder Rights Plan (the "Rights Plan"). Under the Rights Plan, the
Corporation distributed to its stockholders a dividend of one Common Stock
Purchase Right (a "Right" and collectively, the "Rights") for each outstanding
share of the Corporation's Common Stock. Initially, each Right will entitle
holders of Common Stock to buy one share of Common Stock of the Corporation at
an exercise price of $400, subject to adjustment. The Rights will become
exercisable only if a person or group acquires 20% or more of the Common Stock,
or announces a tender or exchange offer which would result in its ownership of
30% or more of the Common Stock, or a person owning 10% or more of the Common
Stock is determined by the Board of Directors to be an "Adverse Person," as
defined in the Rights Plan.
If any person or group becomes the beneficial owner of 25% or more of the
Common Stock except pursuant to a tender offer for all shares which the
directors determine to be at a fair price and in the best interests of the
Corporation; a 20% or more stockholder engages in a merger with the Corporation
in which the Corporation survives and its Common Stock remains outstanding and
unchanged; certain other events involving the Corporation and a 20% or more
stockholder occur; or, under certain circumstances, the Board of Directors
determines a 10% or more stockholder to be an Adverse Person, each Right not
then held by such person or related parties will entitle its holder to purchase,
at the Right's then current exercise price, Common Stock of the Corporation (or,
in certain circumstances as determined by the Board of Directors, a combination
of cash, property, Common Stock or other securities) having a value of twice the
Right's exercise price. In addition, at any time after a stockholder acquires a
20% or more equity interest in the Corporation, if the Corporation is involved
in a merger or other business combination transaction with another person in
which its Common Stock is changed or converted, or sells or transfers more than
50% of its assets or earning power to another person, each Right that has not
previously been exercised or voided will entitle its holder to purchase, at the
Right's then current exercise price, shares of common stock of such other person
having a value of twice the Right's exercise price. The Corporation generally is
entitled to redeem the Rights at $.01 per Right at any time until the Board of
Directors determines a 10% or more stockholder to be an Adverse Person or the
tenth day following public announcement that a 20% equity interest in the
Corporation has been acquired. The Rights Plan will expire on December 21, 1999
unless the Rights are earlier redeemed by the Corporation.
The adoption of the Rights Plan has the effect of making an unsolicited
takeover of the Corporation more difficult and more costly to any potential
acquiror in circumstances in which the Board of Directors determines that such
an unsolicited takeover is not in the best interests of the Corporation's
stockholders.
CERTAIN RESTATED ARTICLES AND BY-LAWS PROVISIONS; MASSACHUSETTS LAW
Massachusetts General Laws Chapter 156B, Section 50A requires that
publicly-held Massachusetts corporations have a classified board of directors
consisting of three classes as nearly equal in size as possible, unless the
corporation elects not to be covered by Section 50A. Consequently, the Board of
Directors of the Corporation is divided into three classes, with each class
serving three years and with the terms of office of the respective classes
expiring in successive years. The Corporation's By-laws contain provisions which
give effect to Section 50A.
The Corporation's By-laws also provide that special meetings of
stockholders may be called upon written application of one or more stockholders
who hold at least 90% of the capital stock entitled to vote at the meeting. The
effect of this provision is to make it more difficult for the stockholders to
call a special meeting of stockholders. In addition, the Corporation's By-laws
require advance notice (i) for any business to be properly brought before a
stockholders' meeting by a stockholder and (ii) of nominations of persons for
election to the Board of Directors at the annual meeting.
The Corporation is subject to the provisions of Chapter 110F of the
Massachusetts General Laws, the so-called Business Combination Statute. Under
Chapter 110F, a Massachusetts corporation with over 200 stockholders, such as
the Corporation, may not engage in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person becomes an interested stockholder, unless (i) the interested
stockholder obtains the approval of the Board of Directors
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<PAGE> 17
prior to becoming an interested stockholder, (ii) the interested stockholder
acquires 90% of the outstanding voting stock of the corporation (excluding
shares held by certain affiliates of the corporation) at the time it becomes an
interested stockholder, or (iii) the business combination is approved by both
the Board of Directors and the holders of two-thirds of the outstanding voting
stock of the corporation (excluding shares held by the interested stockholder).
An "interested stockholder" is a person who, together with affiliates and
associates, owns (or at any time within the prior three years did own) 5% or
more of the outstanding voting stock of the corporation. A "business
combination" includes a merger, a stock or assets sale, and other transactions
resulting in a financial benefit to the stockholders.
By vote of the Board of Directors, the Corporation has elected to be exempt
from the applicability of Massachusetts General Laws, Chapter 110D, entitled
"Regulation of Control Share Acquisitions." In general, this statute provides
that any stockholder of a corporation subject to this statute who acquires 20%
or more of the outstanding voting stock of a corporation (except in certain
transactions) may not vote such stock unless the stockholders of the corporation
so authorize. The Board of Directors may amend the Corporation's By-laws at any
time to subject the Corporation to this statute prospectively.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Corporation may, at its option, elect to offer Depositary Shares rather
than full shares of Preferred Stock. In the event such option is exercised, each
of the Depositary Shares will represent ownership of and entitlement to all
rights and preferences of a fraction of a share of Preferred Stock of a
specified series (including dividend, voting, redemption and liquidation
rights). The applicable fraction will be specified in the applicable Prospectus
Supplement. The shares of Preferred Stock represented by the Depositary Shares
will be deposited with a depositary (the "Preferred Stock Depositary") named in
the applicable Prospectus Supplement, under a deposit agreement (the "Deposit
Agreement") among the Corporation, Citibank, N.A. or another financial
institution, as Depositary, and the holders of certificates evidencing
Depositary Shares ("Depositary Receipts"). Depositary Receipts will be delivered
to those persons purchasing Depositary Shares in the offering. The Preferred
Stock Depositary will be the transfer agent, registrar and dividend disbursing
agent for the Depositary Shares. Holders of Depositary Receipts agree to be
bound by the Deposit Agreement, which requires holders to take certain actions
such as filing proof of residence and paying certain charges.
The description set forth herein and in any Prospectus Supplement of
certain provisions of the Deposit Agreement 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 forms of Deposit Agreement and
Depositary Receipts and the Certificate of Designation relating to each series
of Preferred Stock which have been or will be filed as exhibits to or
incorporated by reference into the Registration Statement of which this
Prospectus is a part, at or prior to the issuance of Depositary Shares.
Upon surrender of Depositary Receipts at the office of the Preferred Stock
Depositary and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Preferred Stock Depositary deliver to such holder the whole shares of
Preferred Stock underlying the Depositary Shares evidenced by the surrendered
Depositary Receipts. Partial shares of Preferred Stock 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 shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary
will deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares. Holders of Preferred Stock thus
withdrawn will not thereafter be entitled to deposit such shares under the
Deposit Agreement or to receive Depositary Receipts evidencing Depositary Shares
therefor.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the series of Preferred Stock
represented by the Depositary Shares to the record holders of
16
<PAGE> 18
Depositary Receipts relating to such Preferred Stock in proportion to the
respective number of Depositary Shares owned by such holders on the relevant
record date, which will be the same record date as the record date fixed by the
Corporation for the applicable series of Preferred Stock. The Preferred Stock
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 Preferred Stock Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, in proportion, as nearly as practicable,
to the respective number of Depositary Shares owned by such holders on the
relevant record date. If the Preferred Stock Depositary, after consultation with
the Corporation, determines that it is not feasible to make such distribution,
the Preferred Stock Depositary may, with the approval of the Corporation, adopt
any other method for such distribution as it deems appropriate, including the
sale of such property and distribution of the net proceeds from such sale to
such holders.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the affairs
of the Corporation, whether voluntary or involuntary, the holders of each
Depositary Share will be entitled to the fraction of the liquidation preference
accorded each share of the applicable series of Preferred Stock, as set forth in
the related Prospectus Supplement.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock represented by the applicable series of
Depositary Shares is subject to redemption, such Depositary Shares will be
redeemed from the proceeds received by the Preferred Stock Depositary resulting
from the redemption, in whole or in part, of such series of Preferred Stock held
by the Preferred Stock Depositary. 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 Preferred Stock. Whenever the Corporation
redeems shares of Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the number
of Depositary Shares representing the shares of Preferred Stock so redeemed. The
Preferred Stock Depositary will mail the notice of redemption promptly upon
receipt of such notice from the Corporation and not less than 35 nor more than
60 days prior to the date fixed for redemption of the Preferred Stock and the
Depositary Shares to the record holders of the Depositary Receipts. If less than
all of 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
Preferred Stock 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 such 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 Preferred Stock Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING
Promptly upon receipt of notice of any meeting at which the holders of the
series of Preferred Stock represented by an applicable series of Depositary
Shares are entitled to vote, the Preferred Stock Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Receipts relating to such Preferred Stock. Each record holder of such
Depositary Receipts on the record date (which will be the same date as the
record date for the related Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock underlying such holder's Depositary
Shares. The Preferred Stock Depositary will endeavor, insofar as practicable, to
vote the number of shares of Preferred Stock 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 Preferred Stock Depositary in order
to enable the Preferred Stock Depositary to do so. The
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<PAGE> 19
Preferred Stock Depositary will abstain from voting shares of Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Receipts relating to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT 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 Preferred Stock Depositary. However, unless
otherwise indicated in the applicable Prospectus Supplement, 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 a majority of the Depositary Shares then outstanding. No such
amendment may impair the rights, subject to the terms of the Deposit Agreement,
of any owner of any Depositary Shares to surrender the Depositary Receipts
evidencing such Depositary Shares with instructions to the Preferred Stock
Depositary to deliver to the holder the Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
provisions of applicable law. A Deposit Agreement may be terminated by the
Corporation or the Preferred Stock Depositary only if (i) all outstanding
Depositary Shares relating thereto have been redeemed or surrendered by the
holders thereof or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Corporation and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the Preferred Stock Depositary
arrangements. The Corporation will pay charges of the Preferred Stock Depositary
in connection with the initial deposit of the Preferred Stock and any redemption
of the Preferred Stock and all withdrawals of Preferred Stock by owners of
Depositary Shares. Holders of Depositary Shares will pay 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 Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from the Corporation which are delivered
to the Preferred Stock Depositary and which the Corporation is required to
furnish to the holders of Preferred Stock. In addition, the Preferred Stock
Depositary will make available for inspection by holders of Depositary Receipts
at the principal office of the Preferred Stock Depositary, and at such other
places as it may from time to time deem advisable, any reports and
communications received from the Corporation which are received by the Preferred
Stock Depositary as the holder of Preferred Stock.
Neither the Preferred Stock Depositary nor the Corporation will be liable
if it is prevented or delayed by law or any circumstance beyond its control in
performing its respective obligations under the Deposit Agreement. Neither the
Preferred Stock Depositary nor the Corporation shall be liable under the Deposit
Agreement except for its negligence or willful misconduct. The obligations of
the Corporation and the Preferred Stock 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 Stock unless satisfactory indemnity is
furnished. In the performance of their duties, the Corporation and the Preferred
Stock Depositary may rely upon (a) written advice of counsel or accountants, (b)
information provided by persons presenting Preferred Stock for deposit, by
holders of Depositary Shares or by other persons believed to be competent, and
(c) documents believed by them to be genuine.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock 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 Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary and its
acceptance of such appointment. Such successor Preferred Stock Depositary must
be appointed within 90
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<PAGE> 20
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.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the Depositary Shares will be treated for federal income tax
purposes as if they were owners of the Preferred Stock represented by such
Depositary Shares. Accordingly, such owners 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 Stock. In addition, (i)
no gain or loss will be recognized for federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares, (ii) the tax
basis of each share of Preferred Stock 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 Preferred
Stock in the hands of an exchanging owner of Depositary Shares will include the
period during which such person owned such Depositary Shares.
DESCRIPTION OF WARRANTS
GENERAL
The Corporation may issue warrants ("Warrants"), including Warrants to
purchase Debt Securities, Warrants to purchase Common Stock, Warrants to
purchase securities issued by another corporation or entity and held by the
Corporation and other types of Warrants. Warrants may be issued independently or
together with Debt Securities, Preferred Stock or Depositary Shares offered by
any Prospectus Supplement and may be attached to or separate from such Debt
Securities, Preferred Stock or Depositary Shares. Each series of Warrants will
be issued under a separate warrant agreement (each a "Warrant Agreement" and
collectively, the "Warrant Agreements") to be entered into between the
Corporation and a warrant agent (the "Warrant Agent"), all as set forth in the
applicable Prospectus Supplement. The Warrant Agent will act solely as an agent
of the Corporation in connection with the Warrant certificates relating to the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders of Warrant certificates or beneficial owners of
Warrants.
The following summaries of certain provisions of the Warrant Agreements and
the Warrants do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Warrant Agreement
and the Warrant certificates relating to each series of Warrants which will be
filed as an exhibit or incorporated by reference into the Registration Statement
of which this Prospectus is a part at or prior to the time of the issuance of
such series of Warrants.
If Warrants are offered, the applicable Prospectus Supplement will describe
the terms of such Warrants, including the following, where applicable: (i) the
offering price; (ii) the number, amount, designation, exercise price and terms,
as the case may be, of Common Stock, Debt Securities or other securities
purchasable upon exercise of such Warrants (the "Warrant Securities"); (iii) the
designation and terms of any series of Debt Securities, Preferred Stock or
Depositary Shares with which Warrants are being offered and the number of such
Warrants being offered with each such Debt Security, share of Preferred Stock or
Depositary Share; (iv) the date, if any, on and after which such Warrants and
the related series of Debt Securities, Preferred Stock or Depositary Shares will
be transferable separately; (v) the date on which the right to exercise such
Warrants shall commence and the date on which such right shall expire (the
"Expiration Date"); (vi) whether the Warrants will be issued in registered or
bearer form; (vii) any special federal income tax consequences; (viii) the
terms, if any, on which the Corporation may accelerate the date by which the
Warrants must be exercised; and (ix) any other terms of such Warrants.
Warrant certificates may (i) be exchanged for new Warrant certificates of
different denominations, (ii) if in registered form, be presented for
registration of transfer, and (iii) be exercised at the corporate trust office
of the Warrant Agent or any other office indicated in the applicable Prospectus
Supplement. Prior to the exercise of any Warrant to purchase Debt Securities,
holders of such Warrants will not have any of the rights of holders of Debt
Securities purchasable upon such exercise, including the right to receive
payments of
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<PAGE> 21
principal of, premium, if any, or interest, if any, on such Debt Securities or
to enforce covenants in the applicable Indenture. Prior to the exercise of any
Warrants to purchase Common Stock or other securities, holders of such Warrants
will not have any rights of holders of such Common Stock or other securities,
including the right to receive payments of dividends, if any, or to exercise
voting rights.
Any Warrants issued by the Corporation will involve a certain degree of
risk, including risks arising from fluctuations in the price of the underlying
securities and general risks applicable to the securities market (or markets) on
which the underlying securities are traded. These risks reflect the nature of a
Warrant as an asset which, other factors held constant, tends to decline in
value over time and which becomes worthless upon expiration. Prospective
purchasers of the Warrants should be experienced with respect to options and
option transactions and understand the risks associated with options.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or number of shares of Common Stock or other
securities, as the case may be, at such exercise price as shall in each case be
set forth in, or calculable from, the applicable Prospectus Supplement. 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 Warrants will
become void.
Warrants may be exercised by delivering to the Warrant Agent payment as
provided in the applicable Prospectus Supplement of the amount required to
purchase the Debt Securities, Common Stock or other securities, as the case may
be, purchasable upon such exercise, together with certain information set forth
on the reverse side of the Warrant certificate. Warrants will be deemed to have
been exercised upon receipt of payment of the exercise price, subject to receipt
within 5 business days of the Warrant certificate evidencing such Warrants. Upon
receipt of such payment and the Warrant certificate properly completed and duly
executed at the office of the 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, Common Stock or other securities, as the
case may be, purchasable upon such exercise. If fewer than all of the Warrants
represented by such Warrant certificate are exercised, a new Warrant certificate
will be issued for the remaining Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENTS
The Warrant Agreements may be amended or supplemented without the consent
of the holders of the Warrants issued thereunder to effect changes that are not
inconsistent with the provisions of the Warrants and that do not adversely
affect the interests of the holders of the Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise specified in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock purchasable upon
exercise of a Warrant to purchase Common Stock will be subject to adjustment in
certain events as set forth in the applicable Prospectus Supplement.
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<PAGE> 22
PLAN OF DISTRIBUTION
The Corporation may sell Securities (1) through underwriters or dealers,
(2) directly to one or more purchasers, or (3) through agents. The applicable
Prospectus Supplement will set forth the terms of the Securities offered
thereby, including the name or names of any underwriters, the purchase price of
the Securities, and the proceeds to the Corporation from the sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchange or market on which the
Securities may be listed.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all the Securities of the series offered by the applicable Prospectus Supplement
if any of the Securities are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may also be sold directly by the Corporation through agents
designated by the Corporation from time to time. Any agent involved in the
offering and sale of Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Corporation to such agent will
be set forth, in the applicable Prospectus Supplement. Unless otherwise
indicated in the applicable Prospectus Supplement, any such agent will be acting
on a best-efforts basis for the period of its appointment.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at prices
related to prevailing market prices at the time of sale or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Corporation or from purchasers of Securities for
whom they may act as agent, in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters within the meaning
of the Securities Act, and any discounts or commissions received by them from
the Corporation and any profit on the resale of Securities by them may be deemed
to be underwriting discounts and commissions under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize underwriters, agents or dealers to solicit offers by certain
institutions to purchase Securities from the Corporation at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on the date or dates
stated in the applicable Prospectus Supplement. There may be limitations on the
minimum amount which may be purchased by any such institutional investor or on
the portion of the aggregate amount of the particular Securities which may be
sold pursuant to such arrangements. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be subject to the
approval of the Corporation. Contracts will not be subject to any conditions
except: (a) the purchase by an institution of the Securities covered by its
Contract shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject; and (b)
if the Securities are being sold to underwriters, the Corporation shall have
sold to such underwriters the total amount of the Securities less the amount
thereof covered by Contracts. The underwriters will not have any responsibility
in respect of the validity or performance of the Contracts.
Unless otherwise indicated in the applicable Prospectus Supplement, all
Securities offered will be a new issue of securities with no established trading
market. Any underwriters to whom such Securities are sold by the Corporation for
public offering and sale may make a market in such 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 as to the liquidity
of or the trading markets for any such Securities.
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<PAGE> 23
Agents and underwriters may engage in transactions with, or perform
services for, the Corporation in the ordinary course of business.
Under agreements which may be entered into by the Corporation, dealers and
agents who participate in the distribution of Securities may be entitled, and
the Corporation has agreed that underwriters, if any, will be entitled, to
indemnification by the Corporation against certain liabilities, including
liabilities under the Securities Act.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon for the
Corporation by Testa, Hurwitz & Thibeault, Boston, Massachusetts, and for any
underwriters, dealers or agents by Goodwin, Procter & Hoar, Boston,
Massachusetts. From time to time, Goodwin, Procter & Hoar serves as special
counsel to the Corporation as to certain environmental matters.
EXPERTS
The consolidated balance sheets of the Corporation as of July 3, 1993 and
June 27, 1992, and the related consolidated statements of operations, cash
flows, and stockholders' equity for each of the three years in the period ended
July 3, 1993, and the related financial statement schedules, all included in the
Corporation's Annual Report on Form 10-K for the fiscal year ended July 3, 1993,
incorporated by reference in this Prospectus, have been incorporated herein in
reliance on the report, which includes an explanatory paragraph indicating that
the Corporation changed its method of accounting for post retirement benefits
other than pensions in 1992, of Coopers & Lybrand, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses (other than
underwriting discounts and commissions) payable in connection with the
distribution of the Securities registered hereby.
<CAPTION>
AMOUNT
--------
<S> <C>
Securities and Exchange Commission registration fee............ $344,828
Printing and engraving expenses................................ 8,000
Legal fees and expenses........................................ 75,000
Accounting fees and expenses................................... 20,000
Blue Sky fees and expenses (including legal fees).............. 1,000
Trustee fees and expenses...................................... 2,500
Depositary fees and expenses................................... 10,000
Rating agency fees............................................. 135,000
Miscellaneous.................................................. 53,672
--------
Total................................................ $650,000
--------
--------
<FN>
All of the above are estimated except the Securities and Exchange
Commission registration fee.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Any Underwriters who execute either the Underwriting Agreement for Debt
Securities and Warrants to Purchase Debt Securities or the Underwriting
Agreement for Preferred Shares, Depositary Shares and Warrants to Purchase
Equity Securities filed as Exhibit 1.1 and Exhibit 1.2, respectively, to this
Registration Statement, will agree to indemnify the Corporation's directors and
officers who sign this Registration Statement against certain liabilities which
might arise under the Securities Act of 1933 (the "Act") from information
furnished to the Corporation by or on behalf of any such indemnifying party.
The Corporation is required by its By-laws generally to indemnify any
director, officer or employee against all expenses and liabilities reasonably
incurred by or imposed upon such person in connection with any legal action in
which such person is involved by reason of such person's position with the
Corporation unless such person shall have been finally adjudicated in any
action, suit or proceeding not to have acted in good faith in the reasonable
belief that such person's action was in the best interests of the Corporation.
The Corporation may pay expenses incurred by any such person in defending a
civil or criminal action or proceeding in advance of the final disposition of
such action upon the Corporation's receipt of the undertaking of such person to
repay such amount if such person shall be adjudicated not to be entitled to
indemnification.
The Corporation's Restated Articles include a provision limiting the
personal liability of a director of the Corporation to its stockholders for
monetary damages for breaches of their fiduciary duty except (i) for any breach
of the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under section sixty-one or sixty-two of
Chapter 156B of the Massachusetts General Laws, or (iv) for any transaction from
which the director derived an improper personal benefit.
Directors and officers are also insured against certain liabilities under
directors and officers' liability insurance policies maintained by the
Corporation.
<TABLE>
ITEM 16. EXHIBITS.
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<C> <S> <C>
1.1 --Form of Underwriting Agreement for Debt Securities and Warrants to
Purchase Debt Securities................................................
</TABLE>
II-1
<PAGE> 25
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<C> <S> <C>
1.2 --Form of Underwriting Agreement for Preferred Shares, Depositary Shares
and Warrants to Purchase Equity Securities..............................
4.1 --Indenture relating to the Senior Debt Securities dated as of September
15, 1992 between Citibank, N.A., as Trustee, and the Corporation
(including form of Senior Debt Securities), filed as Exhibit 4 to the
Corporation's Registration Statement on Form S-3, Registration Number
33-51378, filed on August 27, 1992, is hereby incorporated by
reference...............................................................
4.2 --Form of Indenture relating to the Subordinated Debt Securities between
Bankers Trust Company, as Trustee, and the Corporation (including form
of Subordinated Debt Securities)........................................
4.3 --Articles of Amendment filed with the Secretary of State of the
Commonwealth of Massachusetts on November 4, 1993.......................
*4.4 --Specimen Certificate of Preferred Stock of the Corporation..............
4.5 --Form of Depositary Receipt (included in Exhibit 4.6)....................
4.6 --Form of Deposit Agreement...............................................
4.7 --Form of Standard Debt Securities Warrant Agreement Provisions...........
4.8 --Form of Standard [Common Stock/Exchange Securities] Warrant Agreement
Provisions..............................................................
5 --Opinion of Testa, Hurwitz & Thibeault, counsel to the Corporation, as to
the legality of the Securities being registered.........................
12 --Computation of ratio of earnings to fixed charges.......................
23.1 --Consent of Coopers & Lybrand............................................
23.2 --Consent of Testa, Hurwitz & Thibeault (included in Exhibit 5)...........
24.1 --Power of Attorney (See page II-5).......................................
25 --Statement of Eligibility and Qualification of Subordinated Debt
Securities Trustee on Form T-1..........................................
<FN>
- ---------------
* To be filed by amendment.
</TABLE>
ITEM 17. UNDERTAKINGS.
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 Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (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 section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement;
II-2
<PAGE> 26
(2) That for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) That, for purposes of determining any liabilities under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective;
(5) That, for the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(6) To file an application for the purpose of determining the eligibility
of the trustee, with respect to the Indenture relating to the Subordinated Debt
Securities, to act under Subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Corporation
pursuant to the foregoing provisions described in Item 15 above and under an
Underwriting Agreement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 27
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 Town of Maynard and the Commonwealth of Massachusetts, on
this 21st day of January 1994.
DIGITAL EQUIPMENT CORPORATION
ROBERT B. PALMER
By:.................................
ROBERT B. PALMER
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
<TABLE>
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE appears below in this Registration Statement
hereby constitutes and appoints Robert B. Palmer, William M. Steul and Gail S.
Mann and each of them, with full power to act without the other, his or her true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead in any
and all capacities (until revoked in writing) to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-3
of Digital Equipment Corporation, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission or any state securities commission or other governmental
entity pertaining to such registration and sale, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <S> <C>
ROBERT B. PALMER President, Chief Executive January 21, 1994
........................................ Officer (Principal Executive
ROBERT B. PALMER Officer) and Director
WILLIAM M. STEUL Vice President -- Finance and January 21, 1994
........................................ Chief Financial Officer
WILLIAM M. STEUL (Principal Financial Officer)
VINCENT J. MULLARKEY Vice President and Corporate January 21, 1994
........................................ Controller (Principal Accounting
VINCENT J. MULLARKEY Officer)
VERNON R. ALDEN Director January 21, 1994
........................................
VERNON R. ALDEN
PHILIP CALDWELL Director January 21, 1994
........................................
PHILIP CALDWELL
COLBY H. CHANDLER Director January 21, 1994
........................................
COLBY H. CHANDLER
</TABLE>
II-4
<PAGE> 28
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <S> <C>
ARNAUD DE VITRY Director January 21, 1994
........................................
ARNAUD DE VITRY
ROBERT R. EVERETT Director January 21, 1994
........................................
ROBERT R. EVERETT
KATHLEEN F. FELDSTEIN Director January 21, 1994
........................................
KATHLEEN F. FELDSTEIN
THOMAS P. GERRITY Director January 21, 1994
........................................
THOMAS P. GERRITY
THOMAS L. PHILLIPS Director January 21, 1994
........................................
THOMAS L. PHILLIPS
DELBERT C. STALEY Director January 21, 1994
........................................
DELBERT C. STALEY
</TABLE>
II-5
<PAGE> 1
EXHIBIT 1.1
DIGITAL EQUIPMENT CORPORATION
(a Massachusetts corporation)
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
______________, 1994
To: The Underwriters named in
the within-mentioned Terms
Agreement
Dear Sirs:
Digital Equipment Corporation (the "Company") proposes to issue and
sell from time to time in one or more offerings, on terms determined at the
time of sale, any or a combination of the following securities: senior debt
securities (the "Senior Securities"), subordinated debt securities (the
"Subordinated Securities," and together with the Senior Securities, the "Debt
Securities") and warrants (the "Debt Warrants" and together with the Debt
Securities, the "Firm Securities") to purchase Senior Securities or
Subordinated Securities. In certain cases, the applicable Terms Agreement (as
defined below) may provide that the Company grants to the Underwriters the
option to purchase additional Convertible Subordinated Securities (as defined
below) or Debt Warrants to purchase additional Convertible Subordinated
Securities (the "Optional Securities"); if and to the extent that the right to
purchase such Optional Securities is granted as herein described, the terms and
conditions of any such option will be described in the applicable Prospectus
Supplement and Terms Agreement (each as hereinafter defined). The Firm
Securities and the Optional Securities are herein collectively referred to as
the "Securities."
The Senior Securities will be issued under an indenture dated as of
September 15, 1992, as amended (the "Senior Indenture"), between the Company
and Citibank, N.A., as Trustee (the "Senior Trustee"), and the Subordinated
Securities will be issued under an indenture dated January __, 1994, as amended
(the "Subordinated Indenture" and together with the Senior Indenture, the
"Indentures"), between the Company and Bankers Trust Company, as Trustee (the
"Subordinated Trustee," and together with the Senior Trustee, the "Trustees").
Each series of Debt Warrants will be issued under a separate warrant agreement
(the warrant agreement relating to any issue of Debt Warrants to be sold
pursuant to this Agreement will be identified in the applicable Terms Agreement
(as hereinafter defined) and is referred to herein as the "Warrant Agreement")
to be entered into between the Company and a warrant agent identified in such
Warrant Agreement (the "Warrant Agent"), all as set forth in the applicable
Prospectus Supplement (as hereinafter defined). Each issue of Senior
Securities and Subordinated Securities may vary, as applicable, as to aggregate
principal amount, maturity date or dates, interest rate or rates or formula and
timing of payments thereof, redemption provisions and sinking fund
requirements, if any, and any other variable terms which the Senior Indenture
or Subordinated Indenture, as the case may be, contemplates may be set forth in
the Senior Securities or Subordinated Securities as issued from time to time.
The terms of any series of Subordinated Securities may further provide that the
Subordinated Securities are convertible (the "Convertible Subordinated
Securities") into shares of the Company's common stock, par value $1.00 per
share ("Common Stock"), or that the Subordinated Securities are exchangeable
(the "Exchangeable Subordinated Securities") for equity securities of other
issuers held by the Company (the "Exchange Securities"), at any time prior to
the maturity of the Subordinated Securities, unless the Subordinated Securities
have been previously redeemed or otherwise acquired by the Company, upon the
terms and subject to the conditions set forth in the Subordinated Indenture.
Each series of Debt
<PAGE> 2
Warrants may vary as to the date from which they are exercisable, the
expiration date, the exercise price and any other variable terms which the
Warrant Agreement contemplates may be set forth in the Debt Warrants as issued
from time to time. The Senior Securities or the Subordinated Securities
(including Convertible or Exchangeable Subordinated Securities, if applicable)
and the Debt Warrants may be offered either together or separately. As used
herein, "Warrant Securities" shall mean the Senior Securities or Subordinated
Securities issuable upon exercise of Debt Warrants.
Whenever the Company determines to make an offering of Securities, it
will enter into an agreement substantially in the form of Exhibit A hereto (the
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, the underwriter or underwriters named therein
(the "Underwriters" or "you," which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of Securities or as
members of an underwriting syndicate). The Terms Agreement relating to each
offering of Securities shall specify the principal amount of Securities to be
issued and their terms not otherwise specified in the Senior Indenture,
Subordinated Indenture or Warrant Agreement, as the case may be, whether the
Underwriters have an option to purchase Optional Securities, the name or names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof) and the principal amount (in the case of Debt
Securities) or number (in the case of Debt Warrants) of Securities which each
severally agrees to purchase, the name or names of the Underwriters acting as
manager or co-managers in connection with such offerings, if any (the
"Representatives," which term shall include each Underwriter in the event that
there shall be no manager or co-managers), the price at which the Securities
are to be purchased by the Underwriters from the Company, the initial public
offering price, any delayed delivery arrangements and the time and place of
delivery and payment. Each offering of Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon each Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_____) relating to
the Securities and the shares of Common Stock issuable upon conversion of
Convertible Subordinated Securities and the offering of the Securities from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"1933 Act") and has filed such amendments thereto, if any, as may have been
required to the date hereof, and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. Such registration
statement (as amended, if applicable) and the prospectus constituting a part
thereof, as from time to time amended or supplemented pursuant to the 1933 Act,
the Securities and Exchange Act of 1934, as amended (the "1934 Act"), or
otherwise, are hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively; PROVIDED, HOWEVER , that a supplement of the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Securities to which it relates. If any revised prospectus shall be
provided to the Underwriters by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on file at the
Commission (whether or not such revised prospectus is required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
2
<PAGE> 3
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each
Underwriter as of the date of the applicable Terms Agreement and as of the
First Closing Time and Second Closing Time, if applicable (as defined in
Section 2 hereof; in each case, the "Representation Date") as follows:
(i) At the time the Registration Statement becomes
effective and as of the applicable Representation Date, the
Registration Statement will comply in all material respects with the
requirements of the 1933 Act, the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"). The Registration Statement, at the time the
Registration Statement becomes effective (or, if an amendment to the
Registration Statement or an annual report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing) will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The Prospectus, at the time the
Registration Statement becomes effective and at the applicable
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company
for use in connection with the offering of the Securities which differs
from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it
is first provided to the Underwriters for such use), will not contain
an 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; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter or
on behalf of any Underwriter expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
under the 1939 Act (Form T-1) of the Trustees under the Senior
Indenture and the Subordinated Indenture.
(ii) The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iii) The consolidated financial statements included in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement or
in said financial statements, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis; the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein; and the Company's ratios of earnings to fixed charges
(actual and, if any, pro forma) included in the Prospectus under the
caption "Ratio of Earnings to Fixed Charges," in the applicable
Prospectus Supplement under the captions "Ratio of Earnings to Fixed
Charges" and "Summary Financial Information" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission.
3
<PAGE> 4
(iv) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the applicable
Representation Date, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise and (C)
except for regular periodic dividends, if any, on shares of Common
Stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and to enter into and perform
its obligations under this Agreement and the Terms Agreement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the character or
location of its properties or the nature or the conduct of its business
requires such qualification, except where the failure to be so
qualified or to be in good standing would not have a material adverse
effect on the Company and its subsidiaries considered as one
enterprise.
(vii) Each subsidiary of the Company listed in Exhibit No.
22 to the Form 10-K annual report of the Company filed with the
Commission under Section 13 of the 1934 Act for the most recent fiscal
year ended which is a "significant subsidiary" as defined in Rule 405
of Regulation C of the 1933 Act Regulations (a "Significant
Subsidiary"), if any, has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the character or location of its properties or
the nature or the conduct of its business requires such qualification,
except where the failure to be so qualified or to be in good standing
would not have a material adverse effect on the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such Significant Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(viii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan
4
<PAGE> 5
agreement, note, lease or other instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, the effect
of which violation or default would be material to the Company and its
subsidiaries considered as one enterprise; and the execution, delivery
and performance of this Agreement, the applicable Terms Agreement
(including this Agreement as incorporated by reference therein), the
applicable Indenture, the Warrant Agreement, if any, and the
Securities, the filing of the Registration Statement and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its Significant Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company, or, to the best of its knowledge, any
applicable law, administrative regulation or administrative or court
decree.
(ix) No labor dispute with the employees of the Company or
any of its Significant Subsidiaries exists or, to the knowledge of the
Company, is imminent and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors, which might be expected to
result in any material adverse change in the condition, financial or
otherwise, or in the earnings or operations of the Company and its
subsidiaries considered as one enterprise.
(x) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or
which might result in any material adverse change in the condition,
financial or otherwise, or in the earnings or operations of the Company
and its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement and the applicable Terms Agreement; there are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(xi) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently employed by
them in connection with the business now operated by them, except where
the failure to own or possess or acquire on reasonable terms, the
patent and proprietary rights, singly or in the aggregate, would not
result in any material adverse change in the condition, financial or
otherwise, or in the earnings or operations of the Company and its
subsidiaries, considered as one enterprise, and neither the Company nor
any of its subsidiaries has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of others with
respect to any patent or proprietary rights, or of any facts which
would render any patent and proprietary rights invalid or inadequate to
protect the interest of the Company or any of
5
<PAGE> 6
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings or operations of the Company and its subsidiaries considered
as one enterprise.
(xii) No authorization, approval or consent of any court
or governmental authority or agency is necessary in connection with the
consummation by the Company of the transactions contemplated by this
Agreement and by the applicable Terms Agreement, including the
offering, issuance or sale of the Securities hereunder, except such as
may be required under the 1933 Act or the 1933 Act Regulations, the
1939 Act or state securities or Blue Sky laws and the qualification of
the Indentures under the 1939 Act.
(xiii) The Company and its Significant Subsidiaries possess
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except such certificates,
authorities or permits which are not material to such conduct of their
business, and neither the Company nor any of its Significant
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings or operations of the
Company and its subsidiaries considered as one enterprise.
(xiv) The Securities have been duly authorized for
issuance and sale pursuant to this Agreement and the applicable Terms
Agreement (or will have been so authorized prior to each issuance of
Securities), will have been duly executed by the Company and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the applicable Terms Agreement and the applicable
Indenture or Warrant Agreement, as the case may be, against payment of
the consideration therefor in accordance with this Agreement and the
applicable Terms Agreement, the Securities will be valid and legally
binding obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles, and will be entitled
to the benefits of the respective Indenture or Warrant Agreement, as
the case may be, relating thereto, which will be substantially in the
form heretofore delivered to the Underwriters; the Securities, the
Senior Indenture, the Subordinated Indenture and the Warrant Agreement,
conform in all material respects to all statements relating thereto
contained in the Prospectus. This Agreement has been, and, at the
Representation Date, the applicable Terms Agreement will have been,
duly executed and delivered by the Company.
(xv) The Indentures have been duly authorized by the
Company, have been duly qualified under the 1939 Act and duly executed
and delivered by the Company and constitute valid and binding
agreements of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(xvi) The Warrant Agreement has been duly authorized by the
Company and, when executed by the proper officers of the Company and
delivered (assuming due execution and delivery thereof by the Warrant
Agent), will constitute a valid and legally binding instrument of the
Company enforceable in accordance with its terms, except as enforcement
thereof may be
6
<PAGE> 7
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally
or by general equitable principles.
(xvii) If the applicable Terms Agreement relates to
Convertible Subordinated Securities, the shares of Common Stock
issuable upon conversion of such Convertible Subordinated Securities
have been duly authorized and reserved for issuance upon such
conversion and, when issued and delivered upon such conversion, will be
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus. The Company has the
authorized capital stock as set forth in the Prospectus and the
shareholders of the Company have no preemptive rights with respect to
the Securities or the Common Stock. No further approval or authority
of the stockholders or the Board of Directors of the Company will be
required for the issuance of the Common Stock upon exercise of the
Convertible Subordinated Securities.
(xviii) If the applicable Terms Agreement relates to Debt
Warrants, the Warrant Securities issuable upon exercise of the Debt
Warrants are duly and validly authorized, have been duly reserved for
issuance upon exercise of the Debt Warrants, and when issued upon the
exercise of the Debt Warrants in accordance with the terms of the
Warrant Agreement, will be duly executed by the Company and, when
issued, authenticated and delivered in the manner provided in the
applicable Indenture, will constitute valid and binding obligations of
the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles and will be
entitled to the benefits of the applicable Indenture. No further
approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance of the Warrant Securities
upon exercise of the Debt Warrants.
(xix) If the applicable Terms Agreement relates to
Exchangeable Subordinated Securities, such Terms Agreement will contain
additional representations and warranties from the Company relating to
the applicable Exchange Securities.
(b) Any certificate signed by any authorized officer of the
Company and delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase
Securities pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth. The Company agrees to sell to each
Underwriter and each Underwriter, severally and not jointly, agrees to purchase
at the price set forth in the applicable Terms Agreement, the aggregate
principal amount of Debt Securities and/or the number of Debt Warrants set
forth in the applicable Terms Agreement, plus any additional principal amount
of Debt Securities and/or number of Debt Warrants, which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
The initial public offering price and the purchase price to be paid by the
several Underwriters for the Securities and any other terms of the Securities
(to the extent not set forth in the applicable Indenture, Warrant Agreement or
in this Agreement) have been determined and set forth in the applicable Terms
Agreement.
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<PAGE> 8
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the place set forth in the
applicable Terms Agreement or at such other place as shall be agreed upon by
the Representatives and the Company, at 10:00 A.M. on the fifth business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or such other time not later than
ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "First Closing Time"). Payment shall be made to the
Company by certified or official bank check or checks drawn in New York
Clearing House funds or similar next day funds payable to the order of the
Company, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates or other instruments representing the
Securities to be purchased by them. Certificates for the Securities shall be in
such denominations and registered in such names as the Representatives may
request in writing at least two business days before the First Closing Time.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. The
certificates for the Securities will be made available for examination and
packaging by the Representatives not later than 10:00 A.M. on the last business
day prior to the First Closing Time at the place set forth in the applicable
Terms Agreement.
(c) If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of EXHIBIT B hereto, with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Representatives at the time payment is made
pursuant to such Delayed Delivery Contracts or such other time specified in the
applicable Terms Agreement, for the accounts of the Underwriters, the fee set
forth in such Terms Agreement in respect of the principal amount of Senior
Securities or Subordinated Securities or the number of Debt Warrants, as the
case may be, for which Delayed Delivery Contracts are made. Any Delayed
Delivery Contracts are to be with institutional investors of the types which
will be set forth in the applicable Prospectus Supplement. At the applicable
Closing Time, the Company will enter into Delayed Delivery Contracts (for not
less than the minimum principal amount of Senior Securities or Subordinated
Securities or minimum number of Debt Warrants, as the case may be, per Delayed
Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company,
as provided below, but not for an aggregate principal amount of Senior
Securities or Subordinated Securities or aggregate number of Debt Warrants, as
the case may be, in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
The Representatives are to submit to the Company, at least three
business days prior to the applicable Closing Time, the names of any
institutional investors with which it is proposed that the Company will enter
into Delayed Delivery Contracts and the principal amount of Senior Securities
or Subordinated Securities or number of Debt Warrants, as the case may be, to
be purchased by each of them, and the Company will advise the Representatives,
at least two business days prior to the applicable Closing Time, of the names
of the institutions with which the making of Delayed Delivery Contracts is
approved by the Company and the principal amount of Senior Securities or
Subordinated Securities or number of Debt Warrants, as the case may be, to be
covered by each such Delayed Delivery Contract.
The principal amount of Senior Securities or Subordinated Securities or
number of Debt Warrants agreed to be purchased by the respective Underwriters
pursuant to the applicable Terms Agreement shall be reduced by the principal
amount of Senior Securities or Subordinated Securities or number of Debt
Warrants, as the case may be, covered by Delayed Delivery Contracts, as to each
Underwriter as set forth
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<PAGE> 9
in a written notice delivered by the Representatives to the Company; provided,
however, that the total principal amount of Senior Securities or Subordinated
Securities or number of Debt Warrants to be purchased by all Underwriters shall
be the total principal amount of Senior Securities or Subordinated
Securities or number of Debt Warrants covered by the applicable Terms
Agreement, less the principal amount of Senior Securities or Subordinated
Securities or number of Debt Warrants, as the case may be, covered by Delayed
Delivery Contracts.
(d) In addition, if the Underwriters are granted an option to
purchase Optional Securities pursuant to the applicable Terms Agreement, upon
written notice from the Representative or Representatives, on behalf of the
Underwriters, given to the Company not more than 30 days subsequent to the date
of the initial public offering of the Securities, the Underwriters may purchase
all or less than all of the Optional Securities with respect to the offering of
Securities to which such Terms Agreement relates in accordance with the terms
and provisions set forth in the applicable Terms Agreement. Such notice shall
be given (i) at least two business days prior to the exercise of such option if
the Second Closing Time (as defined below) is simultaneous with the First
Closing Time, or (ii) at least three business days, but no more than five
business days, prior to the exercise of such option if the Second Closing Time
is subsequent to the First Closing Time. If granted by the Company, such option
may only be exercised by the Underwriters once in connection with each initial
public offering of Securities. The Company agrees to sell to the Underwriters
the principal amount or number of Optional Securities specified in such notice
and the Underwriters agree, jointly and not severally, to purchase such
Optional Securities. Such Optional Securities shall be purchased from the
Company for the account of each Underwriter in the same proportion as the
principal amount or number, as the case may be, of Securities set forth
opposite such Underwriter's name in the applicable Terms Agreement bears to the
total principal amount or number, as the case may be, of Securities covered by
such Terms Agreement (subject to adjustment by you to round purchases) and may
be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of such Securities. No
Optional Securities shall be sold or delivered unless the related Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be surrendered and
terminated at any time upon notice by the Representative or Representatives, on
behalf of the Underwriters, to the Company.
Payment of the purchase price for, and delivery of certificates for,
the Optional Securities shall be made at the place set forth in the applicable
Terms Agreement or at such other place as shall be agreed upon by the
Representatives and the Company (which may be the same as for the First Closing
Time) but not later than seven business days after written notice of election
to purchase Optional Securities is given (such time and date of payment and
delivery being herein called the "Second Closing Time"). Payment shall be made
to the Company by certified or official bank check or checks drawn in New York
Clearing House funds or similar next day funds payable to the order of the
Company, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Optional Securities to be purchased by
them. Certificates for the Optional Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least two business days before the Second Closing Time. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Optional Securities which it has agreed to purchase. The certificates for the
Optional Securities will be made available for examination and packaging by the
Representatives not later than 10:00 A.M. on the last business day prior to the
Second Closing Time at the place set forth in the applicable Terms Agreement.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
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<PAGE> 10
(a) From the date of the applicable Terms Agreement, and for so
long as a Prospectus is required to be delivered in connection with the sale of
Securities covered by such Terms Agreement, the Company will notify the
Representatives, promptly, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment thereto
(including any post-effective amendment), (ii) of the mailing or the delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference into the Registration Statement or Prospectus, (iii) of the receipt
of any comments from the Commission, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Immediately following the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the principal
amount of Senior Securities or Subordinated Securities and/or number of Debt
Warrants, as the case may be, covered thereby and their terms not otherwise
specified in the respective Indenture pursuant to which the Senior Securities
or Subordinated Securities are being issued or Warrant Agreement pursuant to
which the Debt Warrants are being issued, as the case may be, the names of the
Underwriters and the principal amount of Senior Securities or Subordinated
Securities or the number of Debt Warrants, as the case may be, which each
severally has agreed to purchase, the names of the Representatives, the price
at which the Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing in
accordance with Rule 424(b).
(c) From the date of the applicable Terms Agreement, and for so
long as a Prospectus is required to be delivered in connection with the sale of
the Securities covered by such Terms Agreement, the Company will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised Supplemental
Prospectus which the Company proposes for use by the Underwriters in connection
with the offering of such Securities which differs from the prospectus on file
at the Commission, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such amendment or supplement or other documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such prospectus to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to the Representatives as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and any documents incorporated or deemed to be incorporated by
reference therein) as the Representatives may reasonably request and will also
deliver to the Representatives a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The Company will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter
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<PAGE> 11
may reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act with respect to the sale of any Securities covered by the applicable
Terms Agreement.
(e) If, at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Senior Securities or
Subordinated Securities or Debt Warrants, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to amend or supplement the Prospectus
in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
or supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will forthwith prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or otherwise,
so that, as so amended or supplemented, the Prospectus will not include an
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
existing at the time it is delivered to a purchaser, not misleading or to make
the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in which
the Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) With respect to each sale of Securities, the Company will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning, in each case, not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement
relating to such Securities.
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(i) Between the date of any Terms Agreement with respect to the
offer and sale of Debt Securities and the termination of any trading
restrictions or the First or Second Closing Time, whichever is later, with
respect to the Debt Securities covered thereby, except for the issuance of Debt
Securities upon the exercise of Debt Warrants, if any, the Company will not,
without the prior consent of the Representatives, directly or indirectly, sell,
offer to sell, or enter into any agreement to offer or sell, any debt
securities of the Company with a maturity of more than one year, including
additional Debt Securities.
(j) Between the date of any Terms Agreement with respect to
Convertible Subordinated Securities and the 60th day after such date, the
Company will not offer, sell, contract to sell or otherwise dispose of any
shares of Common Stock, or any security convertible into or exchangeable or
exercisable for shares of its Common Stock, without the prior consent of the
Representatives (except for Common Stock issued or issuable pursuant to
reservations or agreements, pursuant to any employee stock
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plan, stock ownership plan or dividend reinvestment plan, or pursuant to any
conversion of previously issued securities of the Company).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the respective Indentures and Warrant Agreement and
any Blue Sky Survey and any Legal Investment Survey, (vii) the fees and
expenses, if any, incurred in connection with the listing of the Securities on
any securities exchange, (viii) the fees and expenses of the Trustees and
Warrant Agent, if any, and (ix) any fees payable in connection with the rating
of the Debt Securities.
If this Agreement or any Terms Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with the offer and sale of
Securities covered by such Terms Agreement.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase the Firm Securities at the First Closing Time
and (if applicable, pursuant to the terms of the applicable Terms Agreement)
the Optional Securities at the Second Closing Time pursuant to any Terms
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by any nationally recognized securities rating agency
to any debt securities or preferred stock of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since the execution of
such Terms Agreement and (iii) there shall not have come to the attention of
the Representatives any facts that would cause them reasonably to believe that
the Prospectus, together with the applicable Prospectus Supplement, at the time
it was required to be delivered to a purchaser of the Securities, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Time the Representatives
shall have received:
(1) The favorable opinion, dated as of the
applicable Closing Time, of Testa, Hurwitz & Thibeault, counsel
for the Company, in form and substance satisfactory to counsel
for the Representatives, to the effect that:
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(i) The Company has been duly incorporated and is
validly existing as a corporation in good corporate standing
under the laws of the Commonwealth of Massachusetts.
(ii) The Company has corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and to enter
into and perform its obligations under this Agreement and the
Terms Agreement.
(iii) Based solely on the opinion of local counsel to
the Company or the general counsel of the Company, each
Significant Subsidiary of the Company specified in the opinion
based on a certificate furnished by the Company, and has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement; all of the issued and
outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of such counsel's knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iv) This Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, have each been duly
authorized, executed and delivered by the Company.
(v) If applicable, the applicable Indenture has
been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof
by the applicable Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(vi) If applicable, the Debt Securities covered by
the applicable Terms Agreement are in the form contemplated by
the applicable Indenture, have been duly authorized by the
Company and, when executed by the Company and authenticated by
the respective Trustee in the manner provided in such Indenture
(assuming the due authorization, execution and delivery of such
Indenture by such Trustee) and delivered against payment of the
purchase price therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and will be
entitled to the benefits of such Indenture.
(vii) If applicable, the Convertible Subordinated
Securities are convertible into Common Stock of the Company in
accordance with the terms of the Subordinated Indenture; the
shares of such Common Stock initially issuable
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upon conversion of such Convertible Subordinated Securities have
been duly authorized and reserved for issuance by the Company
upon such conversion and, when issued upon such conversion, will
be validly issued, fully paid and nonassessable and will
conform, in all material respects, to the description thereof
contained in the Prospectus; the Company has authorized capital
stock as set forth in the Prospectus; and, to the best of such
counsel's knowledge, the shareholders of the Company have no
preemptive rights with respect to such Common Stock. No further
approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance of
Common Stock upon exercise of the Convertible Subordinated
Securities.
(viii) If applicable, the Warrant Agreement has been
duly authorized, executed and delivered by the Company and
(assuming the authorization, execution and delivery thereof by
the Warrant Agent) constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its
terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally and general principles of equity.
(ix) If applicable, the Debt Warrants covered by the
applicable Terms Agreement are in the form contemplated by the
Warrant Agreement, have been duly authorized by the Company and,
when executed by the Company and authenticated by the Warrant
Agent in the manner provided in the Warrant Agreement (assuming
the due authorization, execution and delivery of the Warrant
Agreement by the Warrant Agent) and delivered against payment of
the purchase price therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general principles of equity, and will be
entitled to the benefits of the Warrant Agreement.
(x) If applicable, the Warrant Securities issuable
upon exercise of the Debt Warrants are duly and validly
authorized, have been duly reserved for issuance upon exercise
of the Debt Warrants, and, when issued upon the exercise of the
Debt Warrants in accordance with the terms of the Warrant
Agreement, following due execution by the Company and
authentication and delivery by the applicable Trustee in the
manner provided in the applicable Indenture, will constitute
valid and binding obligations of the Company enforceable in
accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally and by general equitable principles and will be
entitled to the benefits of the applicable Indenture. No further
approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance of
the Warrant Securities upon exercise of the Debt Warrants.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order
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<PAGE> 15
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xii) The Registration Statement (other than the
financial statements, supporting schedules and other financial
and statistical information included or incorporated by
reference therein, as to which no opinion need be rendered)
complies as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the 1933 Act
Regulations.
(xiii) The applicable Indenture has been qualified
under the 1939 Act.
(xiv) The applicable Indenture and the Debt
Securities and/or the Debt Warrants and the Warrant Agreements
covered by the applicable Terms Agreement conform in all
material respects to the descriptions thereof contained in the
Prospectus and the applicable Prospectus Supplement.
(xv) To the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein.
(xvi) The information in the Prospectus under
"Description of Debt Securities," and "Description of Warrants"
to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by such counsel and is correct in all material
respects.
(xvii) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
filed as exhibits to the Registration Statement other than those
filed or incorporated by reference as exhibits thereto.
(xviii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the Securities
covered by the applicable Terms Agreement to the Underwriters,
except such as may be required under the 1933 Act or the 1933
Act Regulations or state securities law and the qualification of
the applicable Indenture under the 1939 Act; and, to the best of
such counsel's knowledge and information, the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement, the applicable Indenture, the Warrant Agreement and
the Securities, the consummation of the transactions
contemplated herein and therein and compliance by the Company
with its obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel to which the Company is a
party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the charter
or by-laws of the Company, or any applicable law, administrative
regulation or administrative or court decree (except
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that no opinion need be expressed as to federal and state
securities laws, except as otherwise explicitly set forth
elsewhere in such opinion).
(xix) Each document filed pursuant to the 1934 Act
(other than the financial statements, supporting schedules and
other financial and statistical information included or
incorporated by reference therein, as to which no opinion need
be rendered) and incorporated or deemed to be incorporated by
reference in the Prospectus complied when so filed as to form in
all material respects with the 1934 Act and the 1934 Act
Regulations.
(xx) If the applicable Terms Agreement relates to
Exchangeable Subordinated Securities, such Terms Agreement may
require that additional opinions be rendered by Testa, Hurwitz &
Thibeault relating to Exchange Securities.
(xxi) The applicable Terms Agreement may state that
in specified instances Testa, Hurwitz & Thibeault may rely on
the opinion of local counsel to the Company or the general
counsel of the Company when giving an opinion required pursuant
to this Agreement or such Terms Agreement.
(2) The favorable opinion, dated as of the applicable
Closing Time, of Goodwin, Procter & Hoar, counsel for the Underwriters,
with respect to the matters set forth in (iv), (v), (vi), (ix), (x)
(xii), (xiii), (xiv) and (xv) inclusive, of subsection (b)(1) of this
Section 5.
(3) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Testa, Hurwitz & Thibeault
and Goodwin, Procter & Hoar shall each additionally state substantially
to the following effect: that nothing has come to their attention that
would lead them to believe that the Registration Statement (except for
financial statements and schedules and other financial or statistical
data included or incorporated by reference therein and that part of the
Registration Statement which constitutes the applicable Trustee's
Statement of Eligibility and Qualification under the 1939 Act (Form
T-1), as to which counsel need make no statement), at the time it became
effective or if an amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at
the time of the most recent such filing, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as amended or supplemented at the date
of the applicable Terms Agreement (except for financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein, as to which counsel need make no
statement) (unless the term "Prospectus" refers to a prospectus which
has been provided to the Underwriters by the Company for use in
connection with the offering of the Securities covered by the applicable
Terms Agreement which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective, in
which case at the time it is first provided to the Underwriters for such
use) or at the First Closing Time or (if applicable) the Second Closing
Time, contained or contains an untrue statement of a material fact or
omitted or omits 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.
16
<PAGE> 17
(c) At the applicable Closing Time there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
such Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of the applicable Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the applicable Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the best of their
knowledge, threatened by the Commission.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from Coopers & Lybrand a
letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations, (ii) it is their opinion that the financial statements and
financial statement schedules included in or incorporated by reference in the
Registration Statement and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which
causes them to believe that at a specified date not more than five days prior
to the date of the applicable Terms Agreement, there has been any change in the
capital stock of the Company or any increase in the consolidated long term debt
of the Company and its subsidiaries or any decrease in consolidated net current
assets or net assets as compared with the amounts shown in the Company's latest
audited balance sheet or, during the period from the date of such balance sheet
to a specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the corresponding period
in the preceding year, in consolidated revenues, net income/(loss) or net
income/(loss) per share of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur, and (iv) in addition to
the examination referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included in the Registration
Statement and Prospectus and which are specified by the Representatives, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, the Representatives
shall have received from Coopers & Lybrand a letter, dated as of such Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section 5, except that the
specified date referred to shall be a date not more than five days prior to
such Closing Time and, if the Company has elected to rely on Rule 430A of the
1933 Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (d) of this Section with
respect to certain amounts, percentages and financial information specified by
the Representatives and deemed to be a part of the Registration Statement
pursuant to Rule 430(A)(b) and have found such amounts, percentages and
financial information to be in agreement with the records specified in such
clause (iv).
(f) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass
17
<PAGE> 18
upon the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as contemplated in the applicable Terms Agreement shall
be satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by the Representatives by notice to the Company at any time
at or prior to the applicable Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the 1933 Act Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made (1)
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or (2) in that part
of the Registration Statement which constitutes any Trustee's Statement of
Eligibility and Qualification under the 1939 Act (Form T-1). The foregoing
indemnity agreement is in
18
<PAGE> 19
addition to any liability which the Company may otherwise have to any
Underwriter or control person of that Underwriter.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any control person of the Company.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the indemnified party or parties, as incurred, in such
proportion that (i) if the Underwriters are the indemnifying party, the portion
thereof contributed by the Underwriters equals the percentage of the initial
public offering price appearing on the cover page of the Prospectus represented
by the underwriting discount and commissions appearing thereon and (ii) if the
Company is the indemnifying party, the portion thereof contributed by the
Company equals the percentage of the initial public offering price appearing on
the cover page of the Prospectus represented by the net proceeds to the Company
(before deducting expenses) appearing thereon; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as the Company. The Underwriters' obligations to
contribute under this Section 7 are several and not joint. No Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Securities purchased by such Underwriter pursuant to the
applicable Terms Agreement exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
19
<PAGE> 20
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement and the applicable Terms Agreement, or contained in certificates
of officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable
Terms Agreement (including this Agreement, as incorporated by reference
therein), by notice to the Company, at any time at or prior to the applicable
Closing Time (i) if there has been, since the date of such Terms Agreement or
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities covered by such
Terms Agreement or to enforce contracts for the sale of such Securities, or
(iii) if trading in the Common Stock has been suspended by the Commission, or
if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Massachusetts authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof. Notwithstanding any such
termination, (x) the covenants set forth in Section 3 with respect to any
offering of Securities purchased from the Company and (y) the provisions of
Section 4, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13
shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the First Closing Time or (if
applicable) the Second Closing Time to purchase the Securities which it or they
are obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount or number (as the
case may be) of Defaulted Securities does not exceed 10% of the aggregate
principal amount or number (as the case may be) of the Securities to be
purchased pursuant to such Terms Agreement at such Closing Time, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount or number thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations under the applicable Terms Agreement of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount or number (as the
case may be) of Defaulted Securities exceeds 10% of the aggregate principal
amount or number (as the case may be) of the Securities
20
<PAGE> 21
to be purchased pursuant to such Terms Agreement at such Closing Time, such
Terms Agreement shall terminate with respect to such Securities without
liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either the Representatives or
the Company shall have the right to postpone the applicable Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representatives as provided in the
applicable Terms Agreement. Notices to the Company shall be directed to it at
111 Powdermill Road, Maynard, Massachusetts 01754-1418, attention of Ilene B.
Jacobs, Vice President and Treasurer (MS02-2/F23), with a copy to Gail S. Mann,
Esq., Assistant General Counsel, Secretary and Clerk (MS02-3/F13).
SECTION 12. PARTIES. The applicable Terms Agreement and this
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in the applicable Terms Agreement or this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of such Terms Agreement or this Agreement or any
provision herein or therein contained. Such Terms Agreement and this Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
21
<PAGE> 22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
DIGITAL EQUIPMENT CORPORATION
By _________________________________
Name:
Title:
22
<PAGE> 23
EXHIBIT A
DIGITAL EQUIPMENT CORPORATION
(a Massachusetts corporation)
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: _________, 199_
To: Digital Equipment Corporation
146 Main Street
Maynard, MA 01754
Attention:
Dear Sirs:
We (the "Representative") understand that Digital Equipment
Corporation, a Massachusetts corporation (the "Company"), proposes to issue and
sell [$ aggregate principal amount of its][Title of Debt
Securities (the "Debt Securities")] [and] [_______ Warrants (the "Debt
Warrants") to purchase an aggregate of $________ principal amount of [Title of
Warrant Securities (the "Warrant Securities")] [(such Debt Securities and Debt
Warrants being collectively hereinafter referred to as] the "Underwritten
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, (the "Underwriter[s]") hereby offer[s] to
purchase, severally and not jointly, the respective [amounts] [and] [number] of
[Debt Securities] [and] [Debt Warrants] set forth below opposite their
respective names at the [respective] purchase price[s] set forth below.
The [Debt Securities] [and] [Debt Warrants] to be purchased by the
Underwriter[s], which are to be issued under [an Indenture dated as of
, 1994 between the Company and , as Trustee, as
supplemented by Supplemental Indenture dated as of , 19
between the Company and the Trustee] [and] [a Warrant Agreement dated as of
____________, 1994 between the Company and __________, as Warrant Agent] shall
have the following terms:
[Debt Securities]
[Title of Debt Securities: ___________________
Currency: ________________
Principal Amount to be issued: $_______________________
Date of maturity: _________________________
Interest rate or formula: ____%
Interest payment dates: _____________ and ___________ of each year
23
<PAGE> 24
Public offering price: ____% [plus accrued interest from ____________]
Purchase price: ____% (payable in next-day funds]
Redemption provisions: _____________________
Sinking fund requirements: _____________________
Conversion provisions: ________________________
Exchange Provisions:___________________________
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery: _________________
Minimum contract: __________________
Maximum aggregate principal amount: ________________
Fee: _______%]
Closing date and location: _________________________
Additional co-manager: _______________________
Additional underwriters: _________________________
Current ratings: Moody's Investors Service, Inc. _____________
Standard & Poor's Corporation _________
____________________________________]
[Debt Warrants]
[Number of Debt Warrants to be issued: ____________________
Warrant Agent: ____________________
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each
$________ principal amount of Debt Securities:]
[Detachable data:]
Date from which Debt Warrants are exercisable: ___________________
Date on which Debt Warrants expire: ____________________
Exercise price(s) of Debt Warrants: ____________________
Initial public offering price: $_________________
Purchase price: $______________
24
<PAGE> 25
Title of Warrant Securities: ________________ Principal amount
purchasable upon exercise of one Debt Warrant: ______________
Interest rate: ________ Payable: _____________ Date
of maturity:_________________ Redemption provisions:
_________________ Sinking fund requirements: ________________
Conversion provisions: ___________________ Exchange
provisions: ______________________
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery: _________________
Minimum contract: __________________
Maximum aggregate principal amount: ________________
Fee: _______%]
Other terms: ________________
Closing date and location:______________
Additional co-manager: _______________________
Additional underwriters: _________________________
<TABLE>
All of the provisions contained in the document entitled "Digital
Equipment Corporation Debt Securities and Warrants to Purchase Debt Securities,
Underwriting Agreement - Basic Provisions," dated as of January __, 1994, a
copy of which is attached hereto as Annex A, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Terms defined in such document are used herein as therein defined.
The Underwriter[s] agree[s], subject to the terms and provisions of this Terms
Agreement, including the terms and provisions incorporated by reference herein,
to purchase from the Company the following aggregate [principal amount] [and]
[number] of [Debt Securities] [and] [Debt Warrants].
<CAPTION>
Aggregate Title of Debt
Principal Number of Securities Issuable Aggregate
Title of Debt Amount to be Debt Warrants Upon Exercise of Purchase
Name of Underwriter Securities Purchased to be Purchased Debt Warrants Price
- ------------------- ------------- ------------ --------------- ------------------- ---------
<S> <C> <C> <C> <C> <C>
</TABLE>
Any notice by the Company to the Underwriter[s] pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
________________________________.
Please accept this offer by signing a copy of this terms Agreement in
the space set forth below and returning the signed copy to us.
_______________________________________
[Name of Underwriter]
25
<PAGE> 26
By:____________________________________
Name:
Title:
Accepted as of the date
first above written:
DIGITAL EQUIPMENT CORPORATION
By:____________________________________
Name:
Title:
26
<PAGE> 27
EXHIBIT B
DIGITAL EQUIPMENT CORPORATION
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
Dated: ___________, 19__
Digital Equipment Corporation
c/o [Name and address of Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Digital Equipment
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on , 19 (the "Delivery Date"), [$ principal
amount] [number] of the Company's [insert title of security] (the
"Securities"), offered by the Company's Prospectus dated , 199_],
as supplemented by its Prospectus Supplement dated , 19 ,
receipt of which is hereby acknowledged, at a purchase price of [ % the
principal amount thereof, [plus accrued interest from , 19 [and
$___________ per Debt Warrant, respectively] to the Delivery Date,]] and on the
further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds, at the
office of [name and address of Representatives], on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of Securities to be made by the undersigned shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19
, shall have sold to the Underwriters of the Securities (the "Underwriters")
such principal amount of the Securities as is to be sold to them pursuant to
the Terms Agreement dated , 19 between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and
27
<PAGE> 28
purchase of the Securities has been taken by it and no further authorization or
approval of any governmental or other regulatory authority is required for such
execution, delivery, payment or purchase, and that, upon acceptance hereof by
the Company and mailing or delivery of a copy as provided below, this contract
will constitute a valid and binding agreement of the undersigned in accordance
with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate [principal amount] [number] of Securities in excess
of [$] and that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
______________________________
[Name of Purchaser]
By:___________________________
Name:
Title:
______________________________
______________________________
[Address]
Accepted as of the date
first above written
DIGITAL EQUIPMENT CORPORATION
By:____________________________
Name:
Title:
28
<PAGE> 29
<TABLE>
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
<CAPTION>
Telephone No.
Name (Including Area Code)
---- ---------------------
<S> <C>
____________________ ______________________
</TABLE>
38080.c7
1/20/94 10:01 am
29
<PAGE> 1
EXHIBIT 1.2
DIGITAL EQUIPMENT CORPORATION
(a Massachusetts corporation)
Preferred Shares, Depositary Shares and Warrants to Purchase Equity Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
-----------------------------------------
___________________, 1994
To: The Underwriters named in
the within-mentioned Terms
Agreement
Dear Sirs:
Digital Equipment Corporation (the "Company") proposes to issue and
sell from time to time, together or separately, any or a combination of the
following securities: shares of preferred stock of the Company, par value
$1.00 per share (the "Preferred Shares"), in one or more series; depositary
shares representing ownership of and entitlement to all rights and preferences
of a fraction of a Preferred Share of a specified series (the "Depositary
Shares"); and/or warrants to acquire equity securities of or owned by the
Company (the "Warrants"); in one or more offerings on terms determined at the
time of sale. Preferred Shares that are to be represented by each series of
Depositary Shares will be deposited with a depositary (the "Depositary") under
a deposit agreement (the "Deposit Agreement") among the Company, the Depositary
and the holders of certificates evidencing the Depositary Shares. Each series
of Warrants will be issued under a separate warrant agreement (the warrant
agreement relating to any issue of Warrants to be sold pursuant to this
Agreement will be identified in the applicable Terms Agreement (as hereinafter
defined) and is referred to herein as the "Warrant Agreement") to be entered
into between the Company and a warrant agent identified in such Warrant
Agreement (the "Warrant Agent"), all as set forth in the applicable Prospectus
Supplement (as hereinafter defined). Each issue of Preferred Shares may vary
as to the specific number of shares, title, stated value and liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund
requirements, any voting rights, any conversion provision and any other
variable terms as set forth in the applicable certificate of designation (each,
a "Certificate of Designation") relating to such Preferred Shares. Each issue
of Warrants may vary as to issuance price, securities for which such Warrants
are exercisable (any such securities issuable upon exercise of Warrants being
referred to herein as "Warrant Securities"), termination date, exercise price,
redemption provisions and other variable terms which the Warrant Agreement
contemplates may be set forth in the Warrants as issued from time to time. The
Preferred Shares, Depositary Shares and Warrants that may be purchased by the
Underwriters (as hereinafter defined) under this Agreement, are hereinafter
collectively referred to as the "Firm Securities." In certain cases, the
applicable Terms Agreement (as defined below) may provide that the Company
grants to the Underwriters the option to purchase additional Preferred Shares,
Depositary Shares and/or Warrants to cover over-allotments (the "Optional
Securities"); if and to the extent that the right to purchase such Optional
Securities is granted as herein described, the terms and conditions of any such
option will be described in the applicable Prospectus Supplement and Terms
Agreement (each as hereinafter defined). The Firm Securities and the Optional
Securities are herein collectively referred to as the "Securities."
Whenever the Company determines to make an offering of Securities, it
will enter into an agreement substantially in the form of Exhibit A hereto (the
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, the underwriter or underwriters named
<PAGE> 2
therein (the "Underwriters" or "you," which terms shall include the underwriter
or underwriters named therein whether acting alone in the sale of
Securities or as members of an underwriting syndicate). The Terms Agreement
relating to each offering of Securities shall specify the name or names of the
Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof) and the number of Securities which each
severally agrees to purchase, the amount or number of Securities to be issued
and their terms not otherwise specified in the Certificate of Designation, the
Depositary Agreement or the Warrant Agreement, as the case may be, (including,
in the case of Depositary Shares, the applicable fraction of a Preferred Share
represented thereby), whether the Underwriters have an option to purchase
Optional Securities, the name or names of the Underwriters acting as manager or
co-managers in connection with such offerings, if any (the "Representatives,"
which term shall include each Underwriter in the event that there shall be no
manager or co-managers), the price at which the Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, any
delayed delivery arrangements and the time and place of delivery and payment.
Each offering of Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_____) relating to
the Securities and, if required, the Warrant Securities issuable upon exercise
of Warrants, and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 (the "1933 Act") and has filed such
amendments thereto, if any, as may have been required to the date hereof, and
will file such additional amendments thereto and such amended prospectuses as
may hereafter be required. Such registration statement (as amended, if
applicable) and the prospectus constituting a part thereof, as from time to
time amended or supplemented pursuant to the 1933 Act, the Securities and
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
hereinafter referred to as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a supplement of the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall be deemed
to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates. If any revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission (whether
or not such revised prospectus is required to be filed by the Company pursuant
to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer
to such revised prospectus from and after the time it is first provided to the
Underwriters for such use. All references in this Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each
Underwriter, as of the date of the applicable Terms Agreement and as of the
First Closing Time and Second Closing Time (as defined in Section 2 hereof), in
each case, the "Representation Date") as follows:
(i) At the time the Registration Statement
becomes effective and as of the applicable Representation Date, the
Registration Statement will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission under the
<PAGE> 3
1933 Act (the "1933 Act Regulations"). The Registration Statement, at
the time the Registration Statement becomes effective (or, if an
amendment to the Registration Statement or an annual report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time of
the most recent such filing) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
Prospectus, at the time the Registration Statement becomes effective
and at the applicable Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by
the Company for use in connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at the time
the Registration Statement becomes effective, in which case at the time
it is first provided to the Underwriters for such use), will not
contain an 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;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter or on behalf of any Underwriter expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
trustees under the Company's Senior Indenture and Subordinated
Indenture (as defined in the Prospectus).
(ii) The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iii) The consolidated financial statements
included in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as otherwise stated in
the Registration Statement or in said financial statements, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein; and the
Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the Prospectus under the caption "Ratio of Earnings
to Fixed Charges," in the applicable Prospectus Supplement under the
captions "Ratio of Earnings to Fixed Charges" and "Summary Financial
Information" and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission.
(iv) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the applicable
Representation Date, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3
<PAGE> 4
(v) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered
as one enterprise and (C) except for regular periodic dividends, if
any, on shares of Common Stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the Commonwealth of Massachusetts with corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and to enter into and
perform its obligations under this Agreement and the Terms Agreement;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
character or location of its properties or the nature or the conduct
of its business requires such qualification, except where the failure
to be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries considered as one
enterprise.
(vii) Each subsidiary of the Company listed in
Exhibit No. 22 to the Form 10-K annual report of the Company filed
with the Commission under Section 13 of the 1934 Act for the most
recent fiscal year ended which is a "significant subsidiary" as
defined in Rule 405 of Regulation C of the 1933 Act Regulations (a
"Significant Subsidiary"), if any, has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which the character or location of its properties
or the nature or the conduct of its business requires such
qualification, except where the failure to be so qualified or to be in
good standing would not have a material adverse effect on the Company
and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each such Significant Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its Significant Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, the effect of which violation or default
would be material to the Company and its subsidiaries considered as
one enterprise; and the execution, delivery and performance of this
Agreement, the applicable Terms Agreement (including this Agreement as
incorporated by reference therein), the Warrant Agreement, the Deposit
Agreement and the Securities, the filing of the Registration Statement
and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or
default under, or
4
<PAGE> 5
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its Significant Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or, to the
best of its knowledge, any applicable law, administrative regulation
or administrative or court decree.
(ix) No labor dispute with the employees of the
Company or any of its Significant Subsidiaries exists or, to the
knowledge of the Company, is imminent and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors, which might be
expected to result in any material adverse change in the condition,
financial or otherwise, or in the earnings or operations of the
Company and its subsidiaries considered as one enterprise.
(x) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against
the Company or any of its subsidiaries, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings or operations of
the Company and its subsidiaries considered as one enterprise, or
which might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the
consummation of this Agreement and the applicable Terms Agreement;
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xi) The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names (collectively, "patent and proprietary rights")
presently employed by them in connection with the business now
operated by them, except where the failure to own or possess or
acquire on reasonable terms, the patent and proprietary rights, singly
or in the aggregate, would not result in any material adverse change
in the condition, financial or otherwise, or in the earnings or
operations of the Company and its subsidiaries, considered as one
enterprise, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any patent or
proprietary rights, or of any facts which would render any patent and
proprietary rights invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in any material adverse change in the condition,
financial or otherwise, or in the earnings or operations of the
Company and its subsidiaries considered as one enterprise.
(xii) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the consummation by the Company of the transactions contemplated
by this Agreement and by the applicable Terms Agreement, including the
offering, issuance or sale of the Securities hereunder, except such as
may be required under the 1933 Act or the 1933 Act Regulations or
state securities or Blue Sky laws.
5
<PAGE> 6
(xiii) The Company and its Significant Subsidiaries
possess such certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except such
certificates, authorities or permits which are not material to such
conduct of their business, and neither the Company nor any of its
Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings or operations of the Company and its subsidiaries considered
as one enterprise.
(xiv) The Securities have been duly authorized for
issuance and sale pursuant to this Agreement and the applicable Terms
Agreement, or will have been so authorized prior to each issuance of
Securities, and will have been duly executed by the Company. If
applicable, the Preferred Shares, when issued and delivered by the
Company pursuant to this Agreement and the applicable Terms Agreement
against payment of the consideration set forth therein, will be
validly issued, fully paid and non-assessable. If applicable, the
Preferred Shares represented by the Depositary Shares have been duly
issued, are fully paid and non-assessable and have been deposited by
the Company with the Depositary in accordance with the terms of the
Deposit Agreement. If applicable, the Warrants, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the applicable Terms Agreement and the applicable
Warrant Agreement against payment of the consideration therefor in
accordance with this Agreement and the applicable Terms Agreement,
will be valid and binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles, and will be entitled to the benefits
of the respective Warrant Agreement relating thereto, which will be
substantially in the form heretofore delivered to the Underwriters.
The Company has the authorized capital stock as set forth in the
Prospectus. The Securities, the Deposit Agreement, the Warrant
Agreement and the Warrant Securities, conform in all material respects
to all statements relating thereto contained in the Prospectus. This
Agreement has been and, at the Representation Date, the applicable
Terms Agreement will have been, duly executed and delivered by the
Company. The issuance of the Securities is not subject to preemptive
or other similar rights.
(xv) If applicable, the shares of Common Stock
issuable upon conversion of any issue of the Preferred Shares or upon
exercise of any Warrants have been duly authorized and reserved for
issuance upon such conversion or exercise by all necessary corporate
action and, when issued upon such conversion or exercise, will be
validly issued, fully paid and non-assessable, and the issuance of
such shares upon such conversion or exercise will be so authorized and
will not be subject to preemptive rights. No further approval or
authority of the stockholders or the Board of Directors of the Company
will be required for the issuance of the Common Stock upon conversion
of any such Preferred Shares or exercise of any such Warrants.
(xvi) If applicable, the Deposit Agreement has been
duly authorized, executed and delivered by the Company or will be so
authorized, executed and delivered, as the case may be, prior to the
issuance of any applicable Depositary Shares, and constitutes or will
constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles.
6
<PAGE> 7
(xvii) If applicable, upon execution, authentication
and delivery thereof pursuant to the terms of the Deposit Agreement,
the persons in whose names the certificates evidencing Depositary
Shares are registered will be entitled to the rights specified therein
and in the Deposit Agreement, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles.
(xviii) If applicable, the Warrant Agreement has been
duly authorized by the Company and, when executed by the proper
officers of the Company and delivered (assuming due execution and
delivery thereof by the Warrant Agent), will constitute the valid and
legally binding instrument of the Company enforceable in accordance
with its terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by
general equitable principles.
(xix) If the applicable Terms Agreement relates to
Warrants and such Warrants are exercisable for securities other than
Common Stock or other capital stock of the Company, such Terms
Agreement will contain additional representations and warranties from
the Company relating to such securities.
(b) Any certificate signed by any authorized officer of
the Company and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to
purchase Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth. The Company agrees to
sell to each Underwriter and each Underwriter, severally and not jointly,
agrees to purchase at the price set forth in the applicable Terms Agreement,
the aggregate number of Securities set forth in the applicable Terms Agreement,
plus any additional Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof. The initial public
offering price and the purchase price to be paid by the several Underwriters
for the Securities and any other terms of the Securities (to the extent not set
forth in the applicable Certificate of Designation, Deposit Agreement or
Warrant Agreement) have been determined and set forth in the applicable Terms
Agreement.
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the place set forth in the
applicable Terms Agreement or at such other place as shall be agreed upon by
the Representatives and the Company, at 10:00 A.M. on the fifth business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or such other time not later than
ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "First Closing Time"). Payment shall be made to the
Company by certified or official bank check or checks drawn in New York
Clearing House funds or similar next day funds payable to the order of the
Company, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates or other instruments representing the
Securities to be purchased by them. Certificates for the Securities shall be
in such denominations and registered in such names as the Representatives may
request in writing at least two business days before the First Closing Time.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. The
certificates for the Securities
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<PAGE> 8
will be made available for examination and packaging by the Representatives not
later than 10:00 A.M. on the last business day prior to the First Closing Time
at the place set forth in the applicable Terms Agreement.
(c) If authorized by the applicable Terms Agreement,
the Underwriters named therein may solicit offers to purchase Securities from
the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto, with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to the Representatives at the time
payment is made pursuant to such Delayed Delivery Contracts or such other time
specified in the applicable Terms Agreement, for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
number of Securities for which Delayed Delivery Contracts are made. Any
Delayed Delivery Contracts are to be with institutional investors of the types
which will be set forth in the applicable Prospectus Supplement. At the
applicable Closing Time the Company will enter into Delayed Delivery Contracts
(for not less than the minimum number of Securities per Delayed Delivery
Contract specified in the applicable Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company, as
provided below, but not for an aggregate number of Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
The Representatives are to submit to the Company, at least three
business days prior to the First Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the number of Securities to be purchased by each of
them, and the Company will advise the Representatives, at least two business
days prior to the First Closing Time, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Company and
the number of Securities to be covered by each such Delayed Delivery Contract.
The number of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
number of Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by the Representatives
to the Company; provided, however, that the total number of Securities to be
purchased by all Underwriters shall be the total number of Securities covered
by the applicable Terms Agreement, less the number of Securities covered by
Delayed Delivery Contracts.
(d) In addition, if the Underwriters are granted an
option to purchase Optional Securities pursuant to the applicable Terms
Agreement, upon written notice from the Representative or Representatives, on
behalf of the Underwriters, given to the Company not more than 30 days
subsequent to the date of the initial public offering of the Securities, the
Underwriters may purchase all or less than all of the Optional Securities with
respect to the offering of Securities to which such Terms Agreement relates in
accordance with the terms and provisions set forth in the applicable Terms
Agreement. Such notice shall be given (i) at least two business days prior to
the exercise of such option if the Second Closing Time (as defined below) is
simultaneous with the First Closing Time, or (ii) at least three business days,
but in no event more than five business days, prior to the exercise of such
option if the Second Closing Time is subsequent to the First Closing Time. If
granted by the Company, such option may only be exercised by the Underwriters
once in connection with each initial public offering of Securities. The
Company agrees to sell to the Underwriters the number of Optional Securities
specified in such notice and the Underwriters agree, jointly and not severally,
to purchase such Optional Securities. Such Optional Securities shall be
purchased from the Company for the account of each Underwriter in the same
proportion as the number of Securities set forth opposite such Underwriter's
name in the applicable Terms Agreement bears to the total number of Securities
covered by such Terms Agreement (subject to
8
<PAGE> 9
adjustment by you to round purchases) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in connection with the
sale of such Securities. No Optional Securities shall be sold or delivered
unless the related Securities previously have been, or simultaneously are, sold
and delivered. The right to purchase the Optional Securities or any portion
thereof may be surrendered and terminated at any time upon notice by the
Representative or Representatives, on behalf of the Underwriters, to the
Company.
Payment of the purchase price for, and delivery of
certificates for, the Optional Securities shall be made at the place set forth
in the applicable Terms Agreement or at such other place as shall be agreed
upon by the Representatives and the Company (which may be the same as for the
First Closing Time), but not later than seven business days after written
notice of election to purchase Optional Securities is given (such time and date
of payment and delivery being herein called the "Second Closing Time").
Payment shall be made to the Company by certified or official bank check or
checks drawn in New York Clearing House funds or similar next day funds payable
to the order of the Company, against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the Optional
Securities to be purchased by them. Certificates for the Optional Securities
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Second Closing Time. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Optional Securities which it has agreed
to purchase. The certificates for the Optional Securities will be made
available for examination and packaging by the Representatives not later than
10:00 A.M. on the last business day prior to the Second Closing Time at the
place set forth in the applicable Terms Agreement.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with each Underwriter as follows:
(a) From the date of the applicable Terms Agreement,
and for so long as a Prospectus is required to be delivered in connection with
the sale of Securities covered by such Terms Agreement, the Company will notify
the Representatives, promptly, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment thereto
(including any post-effective amendment), (ii) of the mailing or the delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference into the Registration Statement or Prospectus, (iii) of the receipt
of any comments from the Commission, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Securities covered thereby and their terms, the names of the
Underwriters and the number of Securities which each severally has agreed to
purchase, the names of the Representatives, the price at which the Securities
are to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as the Representatives and
the Company deem appropriate in connection with the offering of the Securities.
The Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing in accordance with Rule 424(b).
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<PAGE> 10
(c) From the date of the applicable Terms Agreement,
and for so long as a Prospectus is required to be delivered in connection with
the sale of Securities covered by such Terms Agreement, the Company will give
the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised Supplemental
Prospectus which the Company proposes for use by the Underwriters in connection
with the offering of the Securities which differs from the prospectus on file
at the Commission, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such amendment or supplement or other documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such prospectus to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to the Representatives as
many signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and any documents incorporated or deemed to be incorporated
by reference therein) as the Representatives may reasonably request and will
also deliver to the Representatives a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The Company will furnish to each Underwriter,
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act with
respect to the sale of any Securities covered by the applicable Terms
Agreement.
(e) If at any time when the Prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities any
event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Company, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the opinion of such
counsel, at any such time to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will forthwith prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant
to the 1934 Act or otherwise, so that, as so amended or supplemented, the
Prospectus will not include an 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 existing at the time it is delivered to a purchaser,
not misleading or to make the Registration Statement comply with such
requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in which
the Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) With respect to each sale of Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a twelve month period beginning, in
each case, not later than the first day
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<PAGE> 11
of the Company's fiscal quarter next following the "effective date" (as defined
in said Rule 158) of the Registration Statement relating to such Securities.
(h) The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(i) Between the date of any Terms Agreement with
respect to the offer and sale of Securities and the 60th day after such date
(unless otherwise set forth in the applicable Terms Agreement) the Company will
not, without the prior consent of the Representatives, directly or indirectly,
sell, offer to sell, or enter into any agreement to offer or sell, any
Securities of the same class or series or ranking on a parity with such
Securities or, if such Terms Agreement relates to Securities that are
convertible into or exercisable for Common Stock, any Common Stock or any
security convertible into or exercisable for Common Stock (except for Common
Stock issued or issuable pursuant to reservations or agreements, pursuant to
any employee stock plan, stock ownership plan or dividend reinvestment plan or
pursuant to any conversion of previously issued convertible securities of the
Company).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Deposit Agreement or the Warrant Agreement, as
applicable, any Blue Sky Survey and any Legal Investment Survey, (vii) the fees
and expenses, if any, incurred in connection with the listing of the Securities
on any securities exchange, (viii) fees and expenses of the Depositary and the
Warrant Agent, if any, and (ix) any fees payable in connection with the rating
of the Securities.
If this Agreement or any Terms Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with the offer and sale of
Securities covered by such Terms Agreement.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase Securities pursuant to any Terms Agreement at
the First Closing Time and (if applicable pursuant to the terms of the
applicable Terms Agreement) to purchase Optional Securities at the Second
Closing Time are subject to the accuracy of the representations and warranties
of the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, (ii) the rating assigned by any nationally recognized
securities rating
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<PAGE> 12
agency to any debt securities or preferred stock of the Company as of the date
of the applicable Terms Agreement shall not have been lowered since the
execution of such Terms Agreement and (iii) there shall not have come to the
attention of the Representatives any facts that would cause them reasonably to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to a purchaser of the
Securities, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not misleading.
(b) At the applicable Closing Time the Representatives
shall have received:
(1) The favorable opinion, dated as of the
applicable Closing Time, of Testa, Hurwitz & Thibeault,
counsel for the Company, in form and substance satisfactory to
counsel for the Representatives, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good corporate standing under the laws of the
Commonwealth of Massachusetts.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and to enter into and perform
its obligations under this Agreement and the Terms
Agreement.
(iii) Based solely on the opinion of local
counsel to the Company or the general counsel of the
Company, each Significant Subsidiary of the Company
specified in the opinion based on a certificate
furnished by the Company, has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, and has corporate power and authority
to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement; all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, to the best of such counsel's
knowledge and information, is owned by the Company,
directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) This Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any,
have each been duly authorized, executed and
delivered by the Company.
(v) The Registration Statement is
effective under the 1933 Act and, to the best of such
counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(vi) The Registration Statement (other
than the financial statements, supporting schedules
and other financial and statistical information
included or incorporated by reference therein, as to
which no opinion need be rendered) complies as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
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<PAGE> 13
(vii) The Securities covered by the
applicable Terms Agreement, and, if applicable, the
Deposit Agreement and the Warrant Agreement, conform
in all material respects to the descriptions thereof
contained in the Prospectus and the applicable
Prospectus Supplement.
(viii) To the best of such counsel's
knowledge and information, there are no legal or
governmental proceedings pending or threatened which
are required to be disclosed in the Registration
Statement, other than those disclosed therein.
(ix) The information in the Prospectus
under "Description of Capital Stock," "Description of
Depositary Shares," and "Description of Warrants" to
the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(x) To the best of such counsel's
knowledge and information, there are no contracts,
indentures, mortgages, loan agreements, notes, leases
or other instruments required to be filed as exhibits
to the Registration Statement other than those filed
or incorporated by reference as exhibits thereto.
(xi) No authorization, approval, consent
or order of any court or governmental authority or
agency is required in connection with the offering,
issuance or sale of the Securities covered by the
applicable Terms Agreement to the Underwriters,
except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities law;
and, to the best of such counsel's knowledge and
information, the execution, delivery and performance
of this Agreement, the applicable Terms Agreement,
the Securities, and, if applicable, the Deposit
Agreement and/or Warrant Agreement, the consummation
of the transactions contemplated herein and therein
and compliance by the Company with its obligations
hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument known to such counsel to which the Company
is a party or by which it may be bound, or to which
any of the property or assets of the Company is
subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the
Company, or any applicable law, administrative
regulation or administrative or court decree (except
that no opinion will be expressed as to federal and
state securities laws, except as otherwise explicitly
set forth elsewhere in such opinion).
(xii) Each document filed pursuant to the
1934 Act (other than the financial statements,
supporting schedules and other financial and
statistical information included or incorporated by
reference therein, as to which no opinion need be
rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied
when so filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
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<PAGE> 14
(xiii) If applicable, the Preferred Shares
covered by the applicable Terms Agreement have been
duly authorized by the Company and, when issued and
delivered against payment of the consideration set
forth in this Agreement and the applicable Terms
Agreement, will be validly issued, fully paid and
non- assessable and, to the knowledge of such
counsel, not subject to the preemptive rights of any
stockholder.
(xiv) If applicable, the Depositary Shares
covered by the applicable Terms Agreement, the
Preferred Shares represented by such Depositary
Shares and the deposit of such Preferred Shares by or
on behalf of the Company with the Depositary in
accordance with the Deposit Agreement have been duly
authorized by the Company; when issued and deposited
with the Depositary, the Preferred Shares represented
by such Depositary Shares will be validly issued,
fully paid and non-assessable (assuming issuance of
the related Depositary Shares and delivery thereof
against payment of the consideration set forth in
this Agreement and in the applicable Terms
Agreement). The Depositary Shares and the
certificates evidencing such Depositary Shares are in
the form contemplated by the Deposit Agreement and
when executed by the Company and by the Depositary in
the manner provided in the Deposit Agreement
(assuming the due authorization, execution and
delivery of the Deposit Agreement by the Depositary),
and when delivered against payment of the purchase
price therefor specified in the applicable Terms
Agreement, will be validly issued and the holders of
such Depositary Shares or the persons in whose names
such Depositary Shares are registered will be
entitled to the rights specified therein.
(xv) If the Securities are convertible
into or, in the case of Warrants, exercisable for
shares of Common Stock, the shares of Common Stock
initially issuable upon conversion or exercise
thereof have been duly authorized and reserved for
issuance upon such conversion or exercise and, when
issued upon such conversion or exercise, will be
validly issued, fully paid and non-assessable, and,
to the knowledge of such counsel, the issuance of
such shares upon such conversion will not be subject
to preemptive rights. No further approval or
authority of the stockholders or the Board of
Directors of the Company will be required for the
issuance of such shares of Common Stock upon
conversion or exercise of such Securities.
(xvi) If applicable, the Warrants covered
by the applicable Terms Agreement are in the form
contemplated by the Warrant Agreement, have been duly
authorized by the Company and when executed by the
Company and authenticated by the Warrant Agent in the
manner provided in the Warrant Agreement (assuming
the due authorization, execution and delivery of the
Warrant Agreement by the Warrant Agent) and delivered
against payment of the purchase price thereof
specified in the applicable Terms Agreement, will
constitute valid and binding obligations of the
Company, enforceable against the Company in
accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally
or by general equitable principles, and will be
entitled to the benefits of the Warrant Agreement.
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<PAGE> 15
(xvii) If applicable, the Deposit Agreement
and/or the Warrant Agreement have been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of
the Company enforceable in accordance with their
terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity.
(xviii) If the applicable Terms Agreement
relates to Warrants and such Warrants are exercisable
for securities other than Common Stock or other
capital stock of the Company, such Terms Agreement
may require that additional opinions be rendered by
Testa, Hurwitz & Thibeault relating to such
securities.
(xix) The applicable Terms Agreement may
state that in specified instances Testa, Hurwitz &
Thibeault may rely on the opinion of local counsel to
the Company or the general counsel of the Company
when giving an opinion required pursuant to this
Agreement or such Terms Agreement.
(2) The favorable opinion, dated as of
Closing Time, of Goodwin, Procter & Hoar, counsel for the
Underwriters, with respect to the matters set forth in (iv),
(v), (vi), (vii), (viii) and (ix) inclusive, of subsection
(b)(1) of this Section 5.
(3) In giving their opinions required by
subsections (b)(1) and (b)(2), respectively, of this Section,
Testa, Hurwitz & Thibeault and Goodwin, Procter & Hoar shall
each additionally state substantially to the following effect:
that nothing has come to their attention that would lead them
to believe that the Registration Statement (except for
financial statements and schedules and other financial or
statistical data included or incorporated by reference
therein, as to which counsel need make no statement), at the
time it became effective or if an amendment to the
Registration Statement or an annual report on Form 10-K has
been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the
time of the most recent such filing, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as
amended or supplemented at the date of the applicable Terms
Agreement (except for financial statements and schedules and
other financial or statistical data included or incorporated
by reference therein, as to which counsel need make no
statement) (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of the
Securities covered by the applicable Terms Agreement which
differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective, in which
case at the time it is first provided to the Underwriters for
such use) or at the First Closing Time and (if applicable) the
Second Closing Time, contained or contains an untrue statement
of a material fact or omitted or omits 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.
(c) At the applicable Closing Time there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries
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<PAGE> 16
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with
the same force and effect as though expressly made at and as of the applicable
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
applicable Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or, to the best of their knowledge, threatened by the
Commission.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from Coopers & Lybrand a
letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations, (ii) it is their opinion that the financial statements and
financial statement schedules included in or incorporated by reference in the
Registration Statement and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which
causes them to believe that at a specified date not more than five days prior
to the date of the applicable Terms Agreement, there has been any change in the
capital stock of the Company or any increase in the consolidated long term debt
of the Company and its subsidiaries or any decrease in consolidated net current
assets or net assets as compared with the amounts shown in the Company's latest
audited balance sheet or, during the period from the date of such balance sheet
to a specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the corresponding period
in the preceding year, in consolidated revenues, net income/(loss) or net
income/(loss) per share of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur, and (iv) in addition to
the examination referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included in the Registration
Statement and Prospectus and which are specified by the Representatives, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, the Representatives
shall have received from Coopers & Lybrand a letter, dated as of such Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section 5, except that the
specified date referred to shall be a date not more than five days prior to
such Closing Time and, if the Company has elected to rely on Rule 430A of the
1933 Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (d) of this Section with
respect to certain amounts, percentages and financial information specified by
the Representatives and deemed to be a part of the Registration Statement
pursuant to Rule 430(A)(b) and have found such amounts, percentages and
financial information to be in agreement with the records specified in such
clause (iv).
(f) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance
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<PAGE> 17
and sale of the Securities as contemplated in the applicable Terms Agreement
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by the Representatives by notice to the Company at any time
at or prior to the applicable Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of the 1933 Act Regulations, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or control person of that Underwriter.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability,
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<PAGE> 18
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any control person of the Company.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the indemnified party or parties, as incurred, in such
proportion that (i) if the Underwriters are the indemnifying party, the portion
thereof contributed by the Underwriters equals the percentage of the initial
public offering price appearing on the cover page of the Prospectus represented
by the underwriting discount and commissions appearing thereon and (ii) if the
Company is the indemnifying party, the portion thereof contributed by the
Company equals the percentage of the initial public offering price appearing on
the cover page of the Prospectus represented by the net proceeds to the Company
(before deducting expenses) appearing thereon; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as the Company. The Underwriters' obligations to
contribute under this Section 7 are several and not joint. No Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Securities purchased by such Underwriter pursuant to the
applicable Terms Agreement exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Underwriters.
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SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable
Terms Agreement (including this Agreement, as incorporated by reference
therein), by notice to the Company, at any time at or prior to the applicable
Closing Time (i) if there has been, since the date of such Terms Agreement or
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities covered by such
Terms Agreement or to enforce contracts for the sale of such Securities, or
(iii) if trading in the Common Stock has been suspended by the Commission, or
if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Massachusetts authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof. Notwithstanding any such
termination, (x) the covenants set forth in Section 3 with respect to any
offering of Securities purchased from the Company and (y) the provisions of
Section 4, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13
shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the First Closing Time or (if
applicable) the Second Closing Time to purchase the Securities which it or they
are obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate number of Defaulted Securities does
not exceed 10% of the aggregate number of Securities to be purchased pursuant
to such Terms Agreement, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full number thereof in
the proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations under the applicable Terms Agreement of all
non-defaulting Underwriters, or
(b) if the aggregate number of Defaulted Securities
exceeds 10% of the aggregate number of Securities to be purchased pursuant to
such Terms Agreement, such Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either the Representatives or
the Company shall have the right to postpone the applicable
19
<PAGE> 20
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representatives as provided in the
applicable Terms Agreement. Notices to the Company shall be directed to it at
111 Powdermill Road, Maynard, Massachusetts 01754-1418, attention of Ilene B.
Jacobs, Vice President and Treasurer (MS02-2/F23), with a copy to Gail S. Mann,
Esq., Assistant General Counsel, Secretary and Clerk (MS02-3/F13).
SECTION 12. PARTIES. The applicable Terms Agreement and this
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in the applicable Terms Agreement or this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of such Terms Agreement or this Agreement or any
provision herein or therein contained. Such Terms Agreement and this Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
20
<PAGE> 21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
DIGITAL EQUIPMENT CORPORATION
By______________________________________
Name:
Title:
21
<PAGE> 22
EXHIBIT A
DIGITAL EQUIPMENT CORPORATION
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: _________, 1992
To: Digital Equipment Corporation
146 Main Street
Maynard, MA 01754
Dear Sirs:
We understand that Digital Equipment Corporation, a Massachusetts
corporation (the "Company"), proposes to issue and sell the number of shares of
its [Preferred Stock, $1.00 par value (the "Preferred Shares")] [interests in
Preferred Shares in the form of depositary shares (the "Depositary Shares"),
represented by depositary receipts (the "Depositary Receipts")], [warrants to
acquire ______________ (the "Warrants")], (such [Preferred Shares][, Depositary
Shares and Depositary Receipts], [Warrants] being collectively hereinafter
referred to as the "Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, __________________ (the
"Underwriter[s]") hereby offer[s] to purchase such Securities.
The Securities to be purchased by the Underwriter[s], shall have the
following terms:
Title of Securities:
Number of [Preferred Shares] [Depositary Shares] [Warrants]:
[If applicable, fractional amount of Preferred Shares
represented by each Depositary Share:]
[Current Ratings:]
[Dividend Rate: [$_________] [____%]. Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $_________ [, plus accumulated
dividends, if any, from ________, 19__.]
Purchase price per share: $_________ [, plus accumulated dividends,
if any, from ________, 19__.]
[Conversion provisions:]
Additional co-managers, if any:
[Redemption provisions:]
Number of Option Securities, if any, that may be purchased by the
Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Fee: ]
Other terms:
Closing date and location:
22
<PAGE> 23
Closing date and location: _________________________
Additional co-manager: ___________________________
Additional underwriters: _________________________
All of the provisions contained in the document entitled "Digital
Equipment Corporation Preferred Shares, Depositary Shares and Warrants to
Purchase Equity Securities, Underwriting Agreement - Basic Provisions," dated
as of January ___, 1994, a copy of which is attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined. The Underwriter[s] agree[s], subject to the terms and
provisions of this Terms Agreement, including the terms and provisions
incorporated by reference herein, to purchase from the Company the following
aggregate number of Securities: ________.
Any notice by the Company to the Underwriter[s] pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
________________________________.
Please accept this offer by signing a copy of this terms Agreement in
the space set forth below and returning the signed copy to us.
_______________________________________
[Name of Underwriter]
By:____________________________________
Name:
Title:
Accepted as of the date
first above written:
DIGITAL EQUIPMENT CORPORATION
By:______________________________
Name:
Title:
23
<PAGE> 24
EXHIBIT B
DIGITAL EQUIPMENT CORPORATION
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
Dated: _________, 19__
Digital Equipment Corporation
c/o [Name and address of Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Digital Equipment
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on ____________, 19__ (the "Delivery Date"), _____[insert title of
security]_________ of the Company's (the "Securities"), offered by the
Company's Prospectus dated ____________, 1994, as supplemented by its
Prospectus Supplement dated _____ ____, 19__, receipt of which is hereby
acknowledged, at a purchase price of ____________ and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds, at the
office of [name and address of Representatives], on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of Securities to be made by the undersigned shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _____________, 19__,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
number of the Securities as is to be sold to them pursuant to the Terms
Agreement dated ____________, 19__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities
has been taken by it and no further authorization or approval of any
24
<PAGE> 25
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when
such copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_______________________________________
[Name of Purchaser]
By:____________________________________
Name:
Title:
_______________________________________
________________________________________
[Address]
Accepted as of the date
first above written
DIGITAL EQUIPMENT CORPORATION
By:____________________________
Name:
Title:
25
<PAGE> 26
<TABLE>
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
<CAPTION>
Telephone No.
Name (Including Area Code)
---- ---------------------
<S> <C>
____________________ ______________________
</TABLE>
26
<PAGE> 1
EXHIBIT 4.2
================================================================================
DIGITAL EQUIPMENT CORPORATION
TO
BANKERS TRUST COMPANY, Trustee
_______________________________
INDENTURE
Dated as of January 21, 1994
_______________________________
================================================================================
<PAGE> 2
DIGITAL EQUIPMENT CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, and
Indenture, dated as of January 21, 1994
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
Section 310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) 608, 610
Section 311 (a) 613
(b) 613(b)
(b)(2) 703(a)(2), 703(b)
Section 312 (a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313 (a) 703(a)
(b) 703(b)
(c) 703(a), 703(b)
(d) 703(c)
Section 314 (a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 601(a)
(b) 602
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
Section 316 (a) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 107
</TABLE>
_________________________
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
<TABLE>
TABLE OF CONTENTS
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<CAPTION>
PAGE
<S> <C>
RECITALS OF THE COMPANY 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION 1
Section 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Called Securities 2
Capitalized Lease Obligation 2
Capital Stock 2
Closing Price 3
Commission 3
Common Stock 3
Company 3
Company Request 3
Constituent Person 3
Conversion Agent 3
Conversion Price 3
Corporate Trust Office 3
Corporation 3
Debt Warrants 4
Defaulted Interest 4
Depositary 4
Distribution Record Date 4
Dividend Record Date 4
Escrow Agent 4
Escrow Agreement 4
Event of Default 4
Exchange Act 4
Exchange Agent 4
</TABLE>
(i)
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
<S> <C>
Exchange Rate 4
Exchange Securities 4
Global Security 5
Guaranty 5
Holder 5
Indebtedness 5
Indenture 6
Interest 6
Interest Payment Date 6
Market Price 6
Market Value of the Distribution 6
Material Subsidiary 6
Maturity 7
Obligation 7
Officers' Certificate 7
Opinion of Counsel 7
Original Issue Discount Security 7
Outstanding 7
Paying Agent 8
Payment Blockage Notice 8
Person 8
Place of Payment 8
Predecessor Security 9
Preferred Stock 9
Proceeding 9
Redemption Date 9
Redemption Price 9
Reference Date 9
Regular Record Date 9
Responsible Officer 9
Rights Record Date 9
Securities 9
Security Register 9
Senior Indebtedness 9
Short Term Rights 10
Special Record Date 10
Stated Maturity 10
Subsidiary 10
Trading Day 10
Trigger Events 10
Trustee 10
Trust Indenture Act 11
Unadjusted Distribution 11
</TABLE>
(ii)
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
<S> <C>
U.S. Government Obligations 11
Vice President 11
Section 102. Compliance Certificates and Opinions 11
Section 103. Form of Documents Delivered to Trustee 12
Section 104. Acts of Holders 12
Section 105. Notices, Etc., to Trustee and Company 13
Section 106. Notice to Holders; Waiver 14
Section 107. Conflict with Trust Indenture Act 14
Section 108. Effect of Headings and Table of Contents 14
Section 109. Successors and Assigns 15
Section 110. Separability Clause 15
Section 111. Benefits of Indenture 15
Section 112. Governing Law 15
Section 113. Legal Holidays 15
Section 114. Stockholders, Employees, Officers and Directors of
Company Exempt from Individual Liability 15
ARTICLE TWO SECURITY FORMS 16
Section 201. Forms of Securities Generally 16
Section 202. Securities in Global Form 17
ARTICLE THREE THE SECURITIES 17
Section 301. Amount Unlimited; Issuable in Series 18
Section 302. Denominations 20
Section 303. Execution, Authentication, Delivery and Dating 20
Section 304. Temporary Securities 22
Section 305. Registration, Registration of Transfer and Exchange 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 24
Section 307. Payment of Interest; Interest Rights Preserved;
Paying Agent 25
Section 308. Persons Deemed Owners 27
Section 309. Cancellation 27
Section 310. Computation of Interest 28
ARTICLE FOUR SATISFACTION AND DISCHARGE 28
Section 401. Satisfaction and Discharge of Indenture 28
Section 402. Application of Trust Money 29
Section 403. Defeasance and Discharge of Securities 29
ARTICLE FIVE EVENTS OF DEFAULT AND REMEDIES 31
Section 501. Events of Default 31
Section 502. Acceleration of Maturity; Rescission and Annulment 33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee 34
Section 504. Trustee May File Proofs of Claim 35
</TABLE>
(iii)
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 505. Trustee May Enforce Claims Without Possession of
Securities 36
Section 506. Application of Money Collected 36
Section 507. Limitation on Suits 37
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest 37
Section 509. Restoration of Rights and Remedies 38
Section 510. Rights and Remedies Cumulative 38
Section 511. Delay or Omission Not Waiver 38
Section 512. Control by Holders 39
Section 513. Waiver of Past Defaults 39
Section 514. Undertaking for Costs 40
Section 515. Waiver of Stay or Extension Laws 40
ARTICLE SIX THE TRUSTEE 41
Section 601. Certain Duties and Responsibilities of the Trustee 41
Section 602. Notice of Defaults 42
Section 603. Certain Rights of the Trustee 42
Section 604. Not Responsible for Recitals or Issuance of Securities 43
Section 605. May Hold Securities 44
Section 606. Money Held in Trust 44
Section 607. Compensation and Reimbursement 44
Section 608. Disqualification; Conflicting Interests 45
Section 609. Corporate Trustee Required; Eligibility 45
Section 610. Resignation and Removal; Appointment of Successor 45
Section 611. Acceptance of Appointment by Successor 47
Section 612. Merger, Conversion, Consolidation or Succession to
Business 48
Section 613. Preferential Collection of Claims Against Company 48
Section 614. Appointment of Authenticating Agent 49
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY 50
Section 701. Company to Furnish Trustee Names and Addresses of
Holders 50
Section 702. Preservation of Information; Communications to Holders 51
Section 703. Reports by Trustee 52
Section 704. Reports by Company 53
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE 54
Section 801. Company May Consolidate, Etc., Only on Certain Terms 54
Section 802. Successor Substituted 55
ARTICLE NINE SUPPLEMENTAL INDENTURES 55
Section 901. Supplemental Indentures Without Consent of Holders 55
</TABLE>
(iv)
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 902. Supplemental Indentures with Consent of Holders 57
Section 903. Effect of Holders' Consents 58
Section 904. Execution of Supplemental Indentures 59
Section 905. Effect of Supplemental Indentures 59
Section 906. Conformity with Trust Indenture Act 59
Section 907. Reference in Securities to Supplemental Indentures 59
ARTICLE TEN COVENANTS 60
Section 1001. Payment of Principal, Premium and Interest 60
Section 1002. Maintenance of Office or Agency 60
Section 1003. Money for Securities Payments to Be Held in Trust 60
Section 1004. Corporate Existence 62
Section 1005. Maintenance of Properties 62
Section 1006. Payment of Taxes and Other Claims 62
Section 1007. Statement by Officers as to Default 62
Section 1008. Waiver of Certain Covenants 63
Section 1009. Defeasance of Certain Obligations 63
Section 1010. Applicability of Covenants 64
ARTICLE ELEVEN REDEMPTION OF SECURITIES 65
Section 1101. Applicability of Article 65
Section 1102. Election to Redeem; Notice to Trustee 65
Section 1103. Selection by Trustee of Securities to Be Redeemed 65
Section 1104. Notice of Redemption 66
Section 1105. Deposit of Redemption Price 67
Section 1106. Securities Payable on Redemption Date 67
Section 1107. Securities Redeemed in Part 67
Section 1108. Conversion Arrangements on Call for Redemption 68
ARTICLE TWELVE SINKING FUNDS 68
Section 1201. Applicability of Article 68
Section 1202. Satisfaction of Sinking Fund Payments with Securities 69
Section 1203. Redemption of Securities for Sinking Fund 69
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS 69
Section 1301. Applicability of Article 69
ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES 70
Section 1401. Applicability of Article 70
ARTICLE FIFTEEN MEETINGS OF HOLDERS 70
Section 1501. Purposes of Holders' Meetings 70
Section 1502. Call of Meetings by Trustee 71
</TABLE>
(v)
<PAGE> 9
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 1503. Call of Meetings by Company or Holders 71
Section 1504. Qualifications for Voting 71
Section 1505. Regulations 72
Section 1506. Voting 72
Section 1507. Rights of Trustee or Holders not Delayed 73
ARTICLE SIXTEEN SUBORDINATION OF SECURITIES 73
Section 1601. Agreement to Subordinate 73
Section 1602. Payment Over of Proceeds upon Dissolution, Etc 73
Section 1603. No Payment When Senior Indebtedness in Default 75
Section 1604. Reliance by Senior Indebtedness on Subordination
Provisions. 76
Section 1605. Subrogation to Rights of Holders of Senior
Indebtedness 76
Section 1606. Provisions Solely to Define Relative Rights 76
Section 1607. Trustee to Effectuate Subordination 77
Section 1608. No Waiver of Subordination Provisions 77
Section 1609. Notice to Trustee 78
Section 1610. Reliance on Judicial Order or Certificate of
Liquidating Agent 79
Section 1611. Trustee Not Fiduciary for Holders of Senior
Indebtedness 79
Section 1612. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights 79
Section 1613. Article Applicable to Paying Agents 80
ARTICLE SEVENTEEN CONVERSION OF SECURITIES 80
Section 1701. Applicability of Article; Conversion Privilege and
Conversion Price 80
Section 1702. Exercise of Conversion Privilege 81
Section 1703. Fractions of Shares 82
Section 1704. Adjustment of Conversion Price 82
Section 1705. Notice of Adjustments of Conversion Price 86
Section 1706. Notice of Certain Corporate Action 87
Section 1707. Company to Reserve Common Stock 87
Section 1708. Taxes on Conversion 87
Section 1709. Covenants as to Common Stock 88
Section 1710. Cancellation of Converted Securities 88
Section 1711. Provisions in Case of Consolidation, Merger or Sale
of Assets; Special Distributions 88
Section 1712. Trustee Adjustment Disclaimer; Company Determination
Final 90
Section 1713. When No Adjustment Required 90
Section 1714. Equivalent Adjustments 90
ARTICLE EIGHTEEN EXCHANGE OF SECURITIES 91
Section 1801. Applicability of Article; Right of Exchange 91
Section 1802. Method of Exchange 91
</TABLE>
(vi)
<PAGE> 10
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 1803. Fractional Interests 93
Section 1804. Adjustment of Exchange Rate 93
Section 1805. Escrow Agreement 94
Section 1806. Notice of Certain Events 97
Section 1807. Transfer Taxes 98
Section 1808. Shares Free and Clear 99
Section 1809. Cancellation of Exchanged Securities 99
Section 1810. Provisions in Case of Consolidation, Merger or Sale
of Assets of the Issuer of Exchange Securities 99
Section 1811. Certain Tender or Exchange Offers for Exchange
Securities 100
Section 1812. Obligations of Trustee and Escrow Agent; Company
Determination Final 100
Section 1813. Tax Adjustments of Exchange Rate 101
Section 1814. Cash Equivalent 103
Section 1815. Computation of Taxes Payable 103
</TABLE>
(vii)
<PAGE> 11
INDENTURE, dated as of January 21, 1994, between DIGITAL EQUIPMENT
CORPORATION, a corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts (herein called the "Company"), having its
principal office at 146 Main Street, Maynard, Massachusetts 01754-2751, and
Bankers Trust Company, a New York banking corporation, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
(a) For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. All terms used herein which are defined
in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in effect in the United States on
the date of construction of any such term; and
<PAGE> 12
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
(b) Certain terms, used principally in Article Six, are
defined in that Article. Other terms used in this Indenture have the following
meanings:
"Act", when used with respect to any Holder, has the meaning specified
in Section 104 hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 hereof to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary, the Clerk, an Assistant Secretary or an Assistant Clerk of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Called Securities" has the meaning specified in Section 1108.
"Capitalized Lease Obligation" means indebtedness represented by
obligations under a lease that is recorded as capitalized for financial
reporting purposes in accordance with generally accepted accounting principles
and the amount of such indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such Person.
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"Closing Price" on any Trading Day with respect to the per share price
of Common Stock means the last reported sales price regular way or, in case no
such reported sale takes place on such Trading Day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange or, if not listed or admitted to trading on such Exchange, on the
principal United States national securities exchange on which the Common Stock
is listed or admitted to trading or, if not listed or admitted to trading on
any United States national securities exchange, on the National Association of
Securities Dealers Automated Quotations/National Market (Nasdaq/NNM) or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on Nasdaq/NNM, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm that is selected from time to time by the Company for that
purpose.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" of any Person means every share of each class (however
designated) of the Capital Stock of such Person that is not Preferred Stock of
such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary, an Assistant Secretary, its Clerk or an Assistant Clerk and
delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 1711.
"Conversion Agent" means any person authorized by the Company to act as
Conversion Agent under this Indenture for purposes of Article Seventeen.
"Conversion Price" has the meaning specified in Section 1701.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is
located at Four Albany Street, New York, New York 10006.
"Corporation" includes corporations, associations, companies and
business trusts.
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"Debt Warrants" means certain warrants for the purchase of debt
securities of the Corporation.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that
series. Each Depositary must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
"Distribution Record Date" has the meaning specified in Section 1711.
"Dividend Record Date" has the meaning specified in Section 1704(1)
"Escrow Agent" means the Person named as Escrow Agent under the Escrow
Agreement with respect to Exchange Securities for which any series of
Securities is exchangeable pursuant to Article Eighteen and any successor
Escrow Agent thereunder.
"Escrow Agreement" means any Escrow Agreement entered into pursuant to
Section 1809 with respect to Exchange Securities for which any series of
Securities is exchangeable pursuant to Article Eighteen, as the same may be
supplemented and amended from time to time.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Exchange Agent" means any person authorized by the Company to act as
Exchange Agent under this Indenture for purposes of Article Eighteen.
"Exchange Rate" shall have the meaning provided in Section 1801.
"Exchange Securities" means any Capital Stock or other securities of a
Person, other than the Company, owned by the Company for which Securities of
any series may be exchangeable pursuant to Article Eighteen, as such shares of
Capital Stock or securities may be changed or reclassified from time to time by
any combination, subdivision or reclassification thereof to which Section 1804
applies. In the event a supplemental indenture is entered into pursuant to
Section 1811 providing that the Holder of each Security then outstanding which
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is exchangeable for Exchange Securities shall have the right to exchange such
Security for any other Capital Stock or other securities or property (including
cash), "Exchange Securities" shall include such other Capital Stock or other
securities or property and, in the event the Company instructs the Escrow Agent
to pay cash in lieu of delivering certificates representing Exchange Securities
pursuant to Section 1815 and deposits such cash as required by Section 1815,
"Exchange Securities" shall include such cash.
"Global Security" means a Security evidencing all or a part of a
series of Securities, issued to and registered in the name of the Depositary
for such series, or its nominee, in accordance with Section 303, and bearing
the legend prescribed in Section 202.
"Guaranty" by any Person means any Obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including, without limitation, every Obligation of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that a Guaranty by any Person shall not
include endorsements by such Person for collection or deposit, in either case
in the ordinary course of business. The terms "Guaranteed," "Guaranteeing" and
"Guarantor" shall have meanings correlative to the foregoing.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) any Obligation of such Person relating to any indebtedness of such Person
(A) for borrowed money (whether or not the recourse of the lender is to the
whole of the assets, of such person or only to a portion thereof), (B)
evidenced by notes, debentures or similar instruments (including purchase money
obligations) given in connection with the acquisition of any property or assets
(other than inventory or similar property acquired in the ordinary course of
business), including securities, for the payment of which such Person is
liable, directly or indirectly, or the payment of which is secured by a lien,
charge or encumbrance on property or assets of such Person, (C) for goods,
materials or services purchased in the ordinary course of business (other than
trade accounts payable arising in the ordinary course of business), (D) with
respect to letters of credit or bankers acceptances issued for the account of
such Person or performance, surety or similar bonds, (E) for the payment of
money relating to a Capitalized Lease Obligation or (F) under interest rate
swaps, caps or similar agreements and foreign exchange contracts, currency
swaps or similar agreements; (ii) any liability of others of the kind described
in the preceding clause (i), which such Person has Guaranteed or which is
otherwise its legal liability; and (iii) any and all deferrals, renewals,
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extensions and refunding of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (i) or
(ii).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one person is acting as Trustee under this Indenture due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 610(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series
of Securities for which such person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such person had become such Trustee, but to which
such person, as such Trustee, was not a party.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Price," when used with respect to any Exchange Securities as
of any date, means, if such Exchange Securities are listed on a national
securities exchange, the reported last sales price for such Exchange Securities
on such exchange that is the primary market for such Exchange Securities, or if
such Exchange Securities are not so listed, the reported last bid price
therefor in the over-the-counter market on such date as recorded by any
organization selected by the Company, or, if such bid price is not available,
the market value thereof on such date determined by a firm of investment
bankers or securities dealers having familiarity with such Exchange Securities
selected by the Company; provided, however, that if any such date shall not be
a Business Day, the Market Price shall be based on the specified price on the
Business Day next preceding such date.
"Market Value of the Distribution" has the meaning specified in
Section 1704.
"Material Subsidiary" means, with respect to the Company at any time,
each existing Subsidiary and each Subsidiary hereafter acquired or formed which
would constitute a "significant subsidiary" in accordance with Section 210.1-02
of Regulation S-X promulgated by the Commission under the Exchange Act.
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"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Obligation" of any Person with respect to any specified Indebtedness
means any obligation of such Person to pay principal, premium, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Person, whether or not a
claim for such post-petition interest is allowed in such Proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses or other
amounts relating to such Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary, an Assistant Secretary, the Clerk or an Assistant
Clerk of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who and which shall be reasonably acceptable to
the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
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PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502 hereof, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined as of the date of original issuance
of such Security in the manner provided as contemplated by Section 301, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities owned as provided in clause
(iii) above which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. In case of a dispute as to such right,
the advice of counsel shall be full protection in respect of any decision made
by the Trustee in accordance with such advice. Upon request of the Trustee,
the Company shall furnish to the Trustee an Officers' Certificate listing and
identifying all Securities, if any, known by the Company to be owned or held by
or for the account of any of the persons described in clause (iii) above; and,
subject to Sections 601 and 602, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Notice" and "Payment Blockage Period" have the
respective meanings specified in Section 1603.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to Section 1002, the principal
of (and premium, if any) and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" of any Person means every share of each class
(however designated) of the Capital Stock of such Person that ranks prior, as
to the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up, to any other
share of such or any other class of the Capital Stock of such Person.
"Proceeding" has the meaning specified in Section 1602.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Date" has the meaning specified in Section 1704.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trust and Agency Group (or any successor
group) including, without limitation, any vice president, any assistant
secretary, any assistant treasurer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Rights Record Date" has the meaning specified in Section 1704(2).
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created, incurred,
assumed or guaranteed by the Company, other than the following: (1) any
Indebtedness as to which, in the instrument evidencing such Indebtedness or
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pursuant to which such Indebtedness was issued, it is expressly provided that
such Indebtedness is subordinate in right of payment to all indebtedness of the
Company not expressly subordinated to such Indebtedness; (2) any Indebtedness
which by its terms refers explicitly to the Securities and states that such
Indebtedness shall not be senior, shall be pari passu or shall be subordinated
in right of payment to the Securities; and (3) with respect to any series of
Securities, any Indebtedness of the Company evidenced by Securities of the same
or of another series. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include: (a) Indebtedness of or
amounts owed by the Company for compensation to employees, or for goods or
materials purchased in the ordinary course of business, or for services, or (b)
Indebtedness of the Company to a Subsidiary of the Company.
"Short Term Rights" has the meaning specified in Section 1704(2).
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Company pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other business entity of which securities representing more than 50% of the
combined voting power of the total voting stock (or in the case of an
association or other business entity which is not a corporation, more than 50%
of the equity interest) is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof. When used herein without reference to any
Person, Subsidiary means a Subsidiary of the Company. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trading Day" means each day on which the securities exchange or other
market which is used to determine the Closing Price is open for trading or
quotation.
"Trigger Events" has the meaning specified in Section 1704.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa - 77bbbb), as amended by the Trust Indenture Reform Act
of 1990, as in force at the date as of which this instrument was executed,
except as provided in Section 905, as such act may be amended from time to
time.
"Unadjusted Distribution" has the meaning specified in Section 1704(4).
"U.S. Government Obligations," means direct non-callable obligations
of or non-callable obligations unconditionally guaranteed by, the United States
of America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Vice President," when used with respect to the Company or any other
entity, means any vice president (except that in the case of the Company, such
term shall be limited to those vice presidents who are elected by the Board of
Directors), whether or not designated by a number or a word or words added
before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
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<PAGE> 23
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act or by this Indenture, fix any day as the record date
for the purpose of determining the Holders of Securities of any series entitled
to give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such
series made by any person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be, except otherwise expressly provided
herein. With regard to any record date for action to be taken by the Holders
of one or more series of Securities, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register; as to any matter relating to beneficial ownership interests
in any Global Security, the appropriate Depositary's records shall be
dispositive for purposes of this Indenture.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Group,
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in
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writing to the Trustee by the Company, Attention: Treasurer (with a
copy to the General Counsel), or
(3) either the Trustee or the Company, by the other party,
shall be sufficient for every purpose hereunder if given by facsimile
transmission, receipt confirmed by telephone followed by an original
copy delivered by guaranteed overnight courier: if to the Trustee at
facsimile number (212) 250-6961; and if to the Company at facsimile
number (617) 493-7417.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required or deemed to be included in this Indenture
by any of the provisions of the Trust Indenture Act, such required provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts; provided that
the duties, obligations and rights of the Trustee shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert or exchange a Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities, other than a provision of the Securities of any series that
specifically states that it shall apply in lieu of this Section 113) payment of
interest or principal (and premium, if any) or conversion or exchange of such
Security need not be made at such Place of Payment on such date, but (except as
otherwise provided in a Board Resolution, Officers' Certificate or supplemental
indenture with respect to Securities of any Series) may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, or on such last day for conversion or exchange; provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 114. STOCKHOLDERS, EMPLOYEES, OFFICERS AND DIRECTORS OF COMPANY
EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future
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stockholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES GENERALLY.
The Securities of each series shall be substantially in the form of
Exhibit A hereto or in such other form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary, an Assistant Secretary, the Clerk
or an Assistant Clerk of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By_________________________________
Authorized Signature
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or mechanically reproduced on safety paper, or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
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SECTION 202. SECURITIES IN GLOBAL FORM.
If Securities of a series shall be issuable in the form of one or more
Global Securities, then notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Global Security or Securities may provide
that it or they shall represent the aggregate amount of all Outstanding
Securities of such series (or such lesser amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be increased or reduced from time to time to reflect exchanges. Any
endorsement of any Global Security to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner or
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto and the
records of the registrar for such Global Securities shall be conclusive
evidence of the aggregate principal amount outstanding of any Global Security.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Global Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order.
Unless otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Global Security in permanent
global form shall be made to the registered Holder thereof.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning set forth in
the Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or its nominee to a successor
Depositary or its nominee."
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any)
and interest on the Securities of the series shall be payable (if other
than the currency of the United States of America) and the manner of
determining the equivalent thereof in the currency of the United States
of America for purposes of the definition of "Outstanding" in Section
101;
(3) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(4) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, or the method or methods, if any, by which such date or
dates shall be determined, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the basis upon which interest
shall be calculated if other than a 360-day year of twelve 30-day
months;
(7) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable,
where Securities of the series may be surrendered for registration of
transfer or for
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exchange and where demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) whether the Securities of the series shall be issued in
the form of one or more Global Securities and in such case, (a) if
registered securities of the series are to be issuable as a Global
Security, the Depositary for such Global Security or Securities, which
Depositary shall be a clearing agency registered under the Exchange
Act, and (b) the circumstances under which any such Global Security may
be exchanged for Securities registered in the name of, and any transfer
of such Global Security may be registered to, a person other than such
Depositary or its nominee, if other than as set forth in Section 305;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of or any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(14) if the Securities are to be issued upon the exercise of
Debt Warrants, the time, manner and place for the Securities to be
authenticated and delivered;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to the
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth in the
general provisions of this
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Indenture, and any change in the right of any Trustee or any of the
holders to declare the principal amount of any of the Securities
due and payable;
(16) whether the Securities will be convertible into or
exchangeable for Common Stock or other securities or into Securities of
another series of the Company and, if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, including
the conversion or exchange price and the conversion or exchange
period; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary, an Assistant Secretary, the Clerk or an
Assistant Clerk of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one or its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary, one of its
Assistant Secretaries, its Clerk or one of its Assistant Clerks. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Security or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
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for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, (a) an Opinion of Counsel
stating:
(1) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established
in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles;
and (b) an Officers' Certificate stating:
(1) that the aggregate principal amount of the Outstanding
Securities, following the issuance of such Securities, will not
exceed the maximum principal amount authorized by the Company's
Board of Directors; and
(2) that the Company is not currently in default and, following
the issuance of such Securities, will not be in default under this
Indenture.
If all of the Securities of a series are not to be originally issued
at the same time, then the documents required to be delivered pursuant to the
third paragraph of this Section 303 must be delivered only once, prior to the
authentication and delivery of the first Security of such series; provided,
however, that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall be deemed
to constitute a representation and warranty by the Company that, as of the date
of such request, the statements made in the Officers' Certificate delivered
pursuant to the third paragraph of this Section 303 shall be true and correct
as if made on such date.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section 303 and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities that shall be registered
in the name of the Depositary for such Global Security or Securities or the
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nominee of such depositary and shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
Notwithstanding the foregoing, if any Security (including a Global
Security) shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities issued in global form,
which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
With respect to Securities issued in definitive registered form, if
any, the Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for the series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denomination and of a like aggregate
principal amount.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
At the option of the Holder, Securities of any series (except a Global
Security) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
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with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304 and 1107 for Securities registered in the
name of any person other than the Depositary for such Security or its nominee
only if (i) such Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered under the Exchange Act;
(ii) the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable and the transfer thereof so
registrable (which Company Order will authorize and direct the Trustee to
authenticate and deliver upon such exchange Securities of such series in
definitive registered form, in authorized denominations, in the aggregate
principal amount equal to the principal amount or amounts of such Global
Security or Securities) or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such series. Upon the
occurrence in respect of any Global Security of any series of any one or more
of the conditions specified in clause (i), (ii) or (iii) of the preceding
sentence or such other conditions as may be specified pursuant to Section 301,
such Global Security may be exchanged for Securities registered in the names
of, and the transfer of such Global Security may be registered to, such persons
(including persons other than the Depositary with respect to such series and
its nominees) as such Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall direct. Such Securities shall be
delivered at the Corporate Trust Office to the persons in whose names such
Securities are so registered. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Security shall also
be a Global Security and shall bear the legend specified in Section 202 except
for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, a Global Security pursuant to the preceding
sentence. Upon the exchange of a Global Security for Securities in definitive
registered form such Global Security shall be cancelled by the Trustee.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; PAYING
AGENT.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be
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fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Company shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Company shall promptly notify
the Trustee of such Special Record Date and, in the name and at the
expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2);
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
The Company shall maintain an office or agency where Securities may be
presented for payment. The Trustee is hereby appointed "Paying Agent." The
Company may appoint one or more additional Paying Agents. The term Paying
Agent includes any additional Paying Agent. The Company or any of its
subsidiaries may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Paying Agent not a party to this Indenture that shall implement the provisions
of this Indenture that relate to such Paying Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Paying
Agent and any change in the address of such Paying Agent.
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In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest, the Stated Maturity of which is on such Interest Payment Date, shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence,
in the case of any Security which is converted, interest the Stated Maturity of
which is after the date of conversion of such Security shall not be payable.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
No Holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary shall be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed by
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the Trustee and a certificate of destruction provided to the Company, unless
the Trustee is otherwise directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, exchange, registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute instruments in form and
substance satisfactory to the Trustee and the Company acknowledging
satisfaction and discharge of this Indenture, when:
(1) either:
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii) will
become due and payable at their Stated Maturity within one year, (iii)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, or (iv)
are deemed paid and discharged pursuant to Section 403, and the
Company, in the case of clauses (i), (ii), (iii) or (iv) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 401, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to Section 401, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 403 or 1009 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 403 or
1009 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for the payment of which such
money and U.S. Government Obligations have been deposited with or received by
the Trustee.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 403 or 1009 or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any U.S. Government Obligations or money held
by it as provided in Section 403 or 1009 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess of the
amount thereof which then would have been required to be deposited for the
purpose for which such U.S. Government Obligations or money were deposited or
received. In addition, all moneys deposited with the Trustee pursuant to
Section 401 (and held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon Company Request.
SECTION 403. DEFEASANCE AND DISCHARGE OF SECURITIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any series on the 91st day
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after the date of the deposit referred to in subparagraph (1) below, the
provisions of this Indenture (except as to the right of Holders of such
Securities to receive, from the trust funds described in subparagraph (1)
below, payment of the principal of (and premium, if any) and each installment
of interest on such Outstanding Securities on the Stated Maturity of such
principal or installment of interest (including any mandatory sinking fund or
analogous payments), the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003, and the rights, powers, trusts, duties
and immunities of the Trustee hereunder) shall no longer be in effect, and the
Trustee, upon Company Request and at the expense of the Company, shall execute
instruments in form and substance satisfactory to the Company and the Trustee
acknowledging the same, provided that the following conditions shall have been
satisfied:
(1) the Company has deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section
609 hereof), irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4) and (5) below have been satisfied and
except as provided in Section 402(c)), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, with reference to this
Section 403, (i) money in an amount, (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms, without regard to any reinvestment
thereof, will provide not later than the close of business on the day
prior to the due date of any payment referred to in this paragraph (1)
money in an amount, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the principal of (and premium, if
any), including any mandatory sinking fund or analogous payments, and
each installment of interest on such Outstanding Securities on the
Stated Maturity of such principal or installment of interest on the day
on which such payments are due and payable in accordance with the terms
of this Indenture and of such Securities;
(2) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is party or by which it is
bound;
(3) no Event of Default or event which, after notice or
lapse of time or both, would become an Event of Default shall have
occurred and be continuing on the date of such deposit, and no Event of
Default under Section 501(5) or 501(6) or event which, after notice or
lapse of time or both, would become an Event of Default under Section
501(5) or 501(6) shall have occurred and be continuing on the 91st day
after such date;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or that since the date of this Indenture there has
been a change in applicable tax laws, in either case to the effect that
Holders of such Securities will not recognize income, gain or loss for
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Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance and discharge of the
entire indebtedness on all such Outstanding Securities as contemplated
by this Section 403 have been complied with.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive with respect to such series of Securities.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days, whether or not such payment is
prohibited by Article Sixteen;
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity, whether or not
such payment is prohibited by Article Sixteen;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, whether or not
such payment is prohibited by Article Sixteen;
(4) subject to Section 1009 hereof, default in the
performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section 501
specifically dealt with or which has expressly been included in this
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Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder;
(5) the entry by a court of competent jurisdiction of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Company, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days (or any dismissal, stay, rescission or termination ceasing to
remain in effect);
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding seeking to be adjudicated a bankrupt or insolvent, or the
consent by the Company to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by the Company
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such Notice of Default, which record date shall be at the close of business
on the day the Trustee receives such Notice of Default. The Holders on such
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record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such Notice of Default, whether or not such Holders remain
Holders after such record date; provided, that if Holders of less than the
requisite percentage in principal amount of the Outstanding Securities of such
series, or their proxies, shall have joined in such Notice of Default prior to
the day which is 90 days after such record date, such Notice of Default shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new Notice
of Default identical to a Notice of Default which has been cancelled pursuant
to the proviso to the preceding sentence, in which event a new record date
shall be established pursuant to the provisions of this Section 501.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default described in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) and all
accrued interest thereon, if any, shall become immediately due and payable. In
case an Event of Default described in Section 501(5) or 501(6) shall occur,
such amount shall be due and payable without any declaration of acceleration or
any act on the part of the Trustee or the Holders.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article Five provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel (including without limitation all
amounts set forth in Section 607 hereof);
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
of a series all or part of which is represented by a Global Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the
day which is 90 days after such record date, such notice of declaration of
acceleration, or recision and annulment, as the case may be, shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 502.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days; or
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(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of, the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding, except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
Holders of the Securities, and it shall not be necessary to make any Holders of
the Securities parties to any such proceedings.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article Five shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
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SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture but subject to
the provisions of Article Sixteen, the Holder of any Security shall have the
right, which is absolute and unconditional and shall not be impaired without
the consent of such Holder, to
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(1) receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date);
(2) convert such Security in accordance with Article Seventeen if such
Security is so convertible;
(3) exchange such Security in accordance with Article Eighteen, if such
Security is exchangeable; and
(4) institute suit for the enforcement of any such payment, right to
convert or right to exchange, as the case may be.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Five or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that if less than the Holders of a majority in principal amount of
the Outstanding Securities of such series shall have joined in such notice
prior to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any)
or interest, if any, on any Security of such series; or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders of securities of such series
on such record date, or their duly designated proxies, and only such persons,
shall be entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided, that unless such majority in
principal amount of the Outstanding Securities of any series shall have waived
such default prior to the date which is 90 days after such record date, any
such waiver previously given shall automatically and without further action by
any Holder of securities of such series be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
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of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) With respect to the Securities of any series, except
during the continuance of an Event of Default with respect to the Securities of
such series:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture, but shall not be under any duty to verify the contents or
accuracy thereof.
(b) In case an Event of Default with respect to the
Securities of any series has occurred and is continuing, the Trustee shall,
with respect to Securities of such series, exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series relating to the time, method
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and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 601.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF THE TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Holders or, if
paid by the Trustee, shall be repaid by the Holders upon demand. The
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company relevant to the facts or matters that are the subject of its
inquiry, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The trustee makes no representations as
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to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613 hereof, may otherwise deal with the Company with the same
rights it would have it if were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (in its individual capacity and
as Trustee) and each of its officers, directors, attorneys in fact and
agents for, and to hold each of them harmless against, any loss,
liability, claim or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
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shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services after an Event of Default specified in clauses (5) and (6) under
Section 501 occurs, the expenses and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
person that is eligible pursuant to the Trust Indenture Act to act as such and
have a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 609, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Company nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company shall serve as Trustee. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 609, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article Six.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation.
then in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
by appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611 become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, the Trustee or any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first class mail, postage
prepaid to all Holders of Securities of such series as the names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which:
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates;
(2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee; and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee;
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and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in Subsection (a) or (b) of this Section 611, as the case
may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article Six.
Upon acceptance of appointment by a successor Trustee with respect to
the Securities of any series as provided in this Section 611, the Company shall
mail notice thereof by first-class mail, postage prepaid to all Holders of
Securities of such series as their names and addresses appear in the Security
Register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 610. If the Company fails to
mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed
at the expense of the Company.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
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provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 614, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of the Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
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Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section 614.
If an appointment with respect to one or more series is made pursuant
to this Section 614, the Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
As Trustee
By_________________________________
As Authenticating Agent
By_________________________________
Authorized Signature
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than June 20 and December 20 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of the preceding June 15
or December 15, as the case may be, and
(2) at such other times as the Trustee may request in
writing, within 10 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
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PROVIDED, HOWEVER, that so long as the Trustee is acting as Securities
Registrar, no such list need be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Subsection (a)
of this Section 702; or
(2) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Subsection (a) of this
Section 702, and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Subsection
(a) of this Section 702 a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a tender
to the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five days
after such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
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of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with Subsection (b) of this Section 702, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Subsection (b) of this Section 702.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after September 15 of each year
commencing with the year 1993, so long as any Securities of any series are
outstanding, the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report dated as of such
September 15 with respect to any of the following events which have occurred
within the previous twelve months (but if no such event has occurred within
such period, no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities Outstanding on the date of
such report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon
a creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of Section 311 of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
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(6) any release or release and substitution of property
subject to the lien of this Indenture (and the consideration therefor,
if any) which the Trustee has not previously reported;
(7) any additional issue of Securities which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in
its opinion materially affects the Securities, except action in respect
of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section 703 (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
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registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish to the Trustee the certificate required by
Section 1007(a). For purposes of such certificate, compliance by the
Company with all conditions and covenants of this Indenture shall be
determined without regard to any period of grace or requirement of
notice provided under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person,
the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company as an entirety
or substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed and all other
obligations of the Company under this Indenture and the Securities;
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(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article Eight and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties
and assets of the Company as an entirety or substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(2) to add any Events of Default or additional covenants of
the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series), and to
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make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities to waive such an Event of
Default;
(3) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(4) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding;
(5) to secure the Securities;
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301;
(7) to make provisions with respect to the conversion
rights of Holders pursuant to Article Seventeen;
(8) to make provisions with respect to the exchange rights
of Holders pursuant to Article Eighteen;
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or in any supplemental indenture, or to make any other
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provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects in a manner not reasonably acceptable to the Trustee the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or change the
due date of any sinking fund payment in respect of any Security, or
alter the provisions concerning repayment at the option of the Holder
in respect of any Security, or alter the provisions concerning
redemption at the election of the Company in respect of any Security in
a manner materially adverse to such Holder, or reduce the principal
amount of any Security or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date) or (if
Securities of such series are convertible) adversely affect the right
of a Holder to convert any Security as provided in Article Seventeen,
or, (if Securities of such series are exchangeable) adversely affect
the right of a Holder to exchange any Security as provided in Article
Eighteen, or modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner materially adverse to
the Holders; or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
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provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section 902,
Section 513 or Section 1008, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section 902 and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and
901(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modified
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Upon the request of the Company, accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders and
other documents, if any, required by this Section 902, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects in a manner not reasonably acceptable to the
Trustee the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 902, the
Company shall mail a notice thereof by first-class mail, postage prepaid to all
Holders of Securities affected thereby, as their names and addresses appear on
the Security Registry, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 903. EFFECT OF HOLDERS' CONSENTS.
(a) Until an amendment or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder or a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation
of the consent is not made on any Security. An amendment or waiver becomes
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effective upon receipt by the Trustee of such Officers' Certificate and the
written consents from the Holders of the requisite percentage in principal
amount of Securities.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the persons entitled to consent to
any indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that such supplemental indenture is authorized or permitted by this Indenture,
that it is not inconsistent herewith, that all conditions precedent to the
execution thereof have been met, and that it will be a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 907. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
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conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of each series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion and where notices and demands to or for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that Series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
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Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, all material rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all of the properties used or useful in, and
material to, the conduct of its business or the business of any Material
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment; provided, however, that
nothing in this Section 1005 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any such Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
within 30 days after the Company shall have received notice that the same has
become delinquent, (1) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all material
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Material Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, a certificate of the principal executive officer, principal financial
officer or principal accounting officer, stating whether or not to the best
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knowledge of the signer thereof the Company is in default in the performance
and observance of any of the terms, provisions, conditions or covenants of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
(b) The Company will deliver to the Trustee, forthwith
upon becoming aware of any Event of Default or the occurrence of any event
which, with the giving of notice by the Trustee or the required Holders as
provided in Section 501(4) and lapse of time, would become an Event of Default
under Section 501 hereof), an Officers' Certificate specifying such default or
defaults.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
(a) The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Sections 1005, 1006
or 1007 with respect to the Securities of any series if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to waive any
such term, provision or condition. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such term, provision or condition hereunder,
whether or not such Holders remain Holders after such record date; provided,
that unless the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall have waived such term, provision or
condition prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
SECTION 1009. DEFEASANCE OF CERTAIN OBLIGATIONS.
Subject to Section 404, the Company may omit to comply with any term,
provision or condition set forth in Sections 1005, 1006 or 1007 and Section
501(4) shall not be deemed to be an Event of Default with respect to any series
of Securities, provided that the following conditions shall have been
satisfied:
(1) The Company has deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section
609), irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4) and (5) below have been satisfied and
except as provided in Section 402(c)), as trust funds in trust,
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specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such series of Securities, with reference to
this Section 1009, (i) money in an amount, (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms, without regard to any
reinvestment thereof, will provide not later than the close of business
on the day prior to the date of any payment referred to in this
subparagraph (1) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the principal of
(and premium, if any) and each installment of interest on such
Outstanding Securities on the Stated Maturity of such principal or
installment of interest on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities;
(2) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it
is bound;
(3) no Event of Default or event which, after notice or
lapse of time or both, would become an Event of Default shall have
occurred and be continuing on the date of such deposit, and no Event of
Default under Section 501(5) or 501(6) or event which, after notice or
lapse of time or both, would become an Event of Default under Section
501(5) or 501(6) shall have occurred and be continuing on the 91st day
after such date;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that Holders of
such Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to Federal income tax on the
same amounts and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section 1009 have been complied with.
SECTION 1010. APPLICABILITY OF COVENANTS.
Any series of Securities may provide, as contemplated by Section 301,
that any one or more of the covenants set forth in Sections 1005 and 1006 shall
not be applicable to the Securities of such series.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption of any Securities
at the election of the Company, the Company shall, at least 60 days (45 days in
the case of redemption of all the Securities of any series) prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee at the time of the giving of
notice of redemption to the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption by pro rata or
by lot or such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date, plus accrued interest, if any, or
defaulted interest, if any;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date;
(5) the Conversion Price, if any, the date on which the
right to convert the principal of the Securities to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion, if applicable;
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(7) that the redemption is for a sinking fund, if such is
the case; and
(8) the CUSIP number of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Global Security is so surrendered, the Company shall execute and the Trustee
shall authenticate and deliver to the Depositary, without service charge, a new
Global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered.
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SECTION 1108. CONVERSION ARRANGEMENTS ON CALL FOR REDEMPTION.
Notwithstanding anything to the contrary contained in this Indenture,
in connection with any redemption of Securities which are convertible in
accordance with Article Seventeen, the Company, by an agreement with one or
more investment bankers or other purchasers, may arrange for such purchasers to
purchase all Securities called for redemption (the "Called Securities") which
are either (i) surrendered for redemption, or (ii) not duly surrendered for
redemption or conversion prior to the close of business on the Business Day
prior to the Redemption Date, and to convert the same into shares of Common
Stock, by the purchasers' depositing with the Trustee (acting as Paying Agent
with respect to the deposit of such amount and as Conversion Agent with respect
to the conversion of such Called Securities), in trust for the Holders of the
Called Securities, on or prior to the Redemption Date in the manner agreed to
by the Company and such purchasers, an amount sufficient to pay the Redemption
Price and accrued interest payable by the Company on redemption of such Called
Securities. In connection with any such arrangement for purchase and
conversion, the Trustee as Paying Agent shall pay on or after the Redemption
Date such amounts so deposited by the purchasers in exchange for Called
Securities surrendered for redemption prior to the close of business on the
Redemption Date and for all Called Securities surrendered after such Redemption
Date. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price and accrued
interest of such Called Securities shall be satisfied and discharged to the
extent such amount is so paid by such purchasers; provided, however, that
nothing in this Section 1108 shall in any way relieve the Company of the
obligation to pay such Redemption Price on all Called Securities to the extent
such amount is not so paid by said purchasers. For all purposes of this
Indenture, any Called Securities surrendered by Holders for redemption, and any
Called Securities not duly surrendered for redemption or conversion prior to
the close of business on the Redemption Date, shall be deemed acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion
and shall in all respects be deemed to have been converted, all as of
immediately prior to the close of business on the Business Day prior to the
Redemption Date, subject to the deposit by the purchasers of the above amount
as aforesaid.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article Twelve shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
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series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103. The Trustee shall
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1007.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Unless otherwise provided with respect to Securities of any series in
accordance with Section 301 hereof, Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with the terms of the Securities of such series.
The repayment of any principal amount of Securities pursuant to such option of
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the Holder to require repayment of Securities before their Stated Maturity, for
purposes of Section 309, shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the same to the
Trustee with a directive that such Securities be cancelled. Notwithstanding
anything to the contrary contained in this Section 1301, in connection with any
repayment of Securities the Company may arrange for the purchase of any
Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an amount
not less than the repayment price payable by the Company on repayment of such
Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1401. APPLICABILITY OF ARTICLE.
Unless otherwise provided with respect to Securities of any series in
accordance with Section 301 hereof, whenever this Indenture provides for any
distribution to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than U.S.Dollars shall
be treated for any such action or distribution as that amount of U.S.Dollars
that could be obtained for such amount on such reasonable basis of exchange and
as of the record date with respect to Securities of such series (if any) for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS
SECTION 1501. PURPOSES OF HOLDERS' MEETINGS.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to the provisions of this Article Thirteen
for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
Article Five;
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(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
902; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of such series under any other provision of this
Indenture or under applicable law.
SECTION 1502. CALL OF MEETINGS BY TRUSTEE.
The Trustee may at any time call a meeting of Holders of Securities of
any series to take any action specified in Section 1501, to be held at such
time and at such place as the Trustee shall determine. Notice of every meeting
of the Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given to Holders of Securities of such series in the
manner provided in Section 106. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting. Any failure by
the Trustee to give such notice, or any defect therein, shall not affect or
impair the validity of any action taken at such meeting.
Any meeting of Holders of Securities of any series shall be valid
without notice if the Holders of all Outstanding Securities of such series are
present in person or by proxy or if notice is waived before or after the
meeting by all Holders of Outstanding Securities of such series who are not
present in person or by proxy, and if the Company and the Trustee are either
present by duly authorized representative or have, before or after the meeting,
waived notice.
SECTION 1503. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
Holders of Securities of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the
time and the place for such meeting and may call such meeting to take any
action authorized in Section 1501, by giving notice thereof as provided in
Section 1502.
SECTION 1504. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meetings of Holders of Securities of any
series a Person shall (a) be a Holder of one or more Securities of such series
or (b) be a Person appointed by an instrument in writing as proxy by a Holder
of one or more Securities of such series. The only Persons who shall be
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entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1505. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Holders as provided in Section 1503, in which case the
Company, or Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the Holders of
Outstanding Securities and proxies.
At any meeting each Holder of Outstanding Securities or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; provided, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Outstanding Securities held
by him or instruments in writing as aforesaid duly designating him as the
person to vote on behalf of other Holders. At any meeting of Holders duly
called pursuant to the provisions of Section 1502 or 1503, the presence of
persons holding or representing Securities in an aggregate principal amount
sufficient to take any action on any business for the transaction of which such
meeting was called shall constitute a quorum. Any meeting of Holders duly
called pursuant to the provisions of Section 1502 or 1503 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 1506. VOTING.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
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persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 1502.
The record shall show the principal amount of the Securities voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1507. RIGHTS OF TRUSTEE OR HOLDERS NOT DELAYED.
Nothing in this Article Thirteen contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. AGREEMENT TO SUBORDINATE.
Notwithstanding anything in this Indenture to the contrary (other than
Article Four of this Indenture), the Company covenants and agrees, and each
Holder of a Security, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article,
the Indebtedness represented by the Securities and the payment of any
Obligations with respect to each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all Senior Indebtedness.
SECTION 1602. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or Proceeding,
or any receivership, liquidation, reorganization or other similar case or
Proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding")
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(1) the holders of Senior Indebtedness shall first be
entitled to receive payment in full of all Obligations due or to become
due on or in respect of all Senior Indebtedness, or provision shall be
made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness, before the
Holders of the Securities are entitled to receive any payment or
distribution on account of principal of or premium, if any, or interest
on or other Obligations in respect of the Securities or on account of
any purchase, redemption or other acquisition of Securities by the
Company or any Subsidiary (individually and collectively, a "Securities
Payment"), and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than Capital Stock or securities of the Company as reorganized or
readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment
of which is subordinate, at least to the extent provided in this
Article Sixteen with respect to the Securities, to the payment in full,
without diminution or modification by such plan, of all Senior
Indebtedness), to which the Holders would be entitled except for the
provisions of this Article Sixteen, shall be paid by the liquidating
trustee or agent or other person making such a payment or distribution,
directly to the holders of Senior Indebtedness) (or their
representative(s) or trustee(s) acting on their behalf), ratably
according to the aggregate amounts remaining unpaid on account of the
principal of or interest on and other amounts due on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 1601, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Capital Stock or securities
of the Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinate, at least to the extent provided in this
Article with respect to the Securities, to the payment in full, without
diminution or modification by such plan, of Senior Indebtedness), before all
Senior Indebtedness is paid in full or payment thereof provided for in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of, and be paid over to, the holders of the Senior Indebtedness
remaining unpaid (or their representative(s) or trustee(s) acting on their
behalf), ratably as aforesaid, for application to the payment of such Senior
Indebtedness until such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
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in Article Eight shall not be deemed a Proceeding for the purposes of this
Section 1602 if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
SECTION 1603. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
Anything in this Indenture to the contrary notwithstanding, no payment
on account of principal of or redemption of, interest on or other amounts due
on the Securities, and no redemption, purchase, or other acquisition of the
Securities, shall be made by or on behalf of the Company (i) unless full
payment of amounts then due for principal and interest and of all other
obligations then due on all Senior Indebtedness has been made or duly provided
for pursuant to the terms of the instrument governing such Senior Indebtedness,
(ii) if, at the time of such payment, redemption, purchase or other
acquisition, or immediately after giving effect thereto, there shall exist
under any Senior Indebtedness, or any agreement pursuant to which any Senior
Indebtedness is issued, any default, which default shall not have been cured or
waived and which default shall have resulted in the full amount of such Senior
Indebtedness being declared due and payable or (iii) if, at the time of such
payment, redemption, purchase or other acquisition, the Trustee shall have
received written notice from the holder or holders of any Senior Indebtedness
or their representative or representatives (a "Payment Blockage Notice") that
there exists under such Senior Indebtedness, or any agreement pursuant to which
such Senior Indebtedness is issued, any default, which default shall not have
been cured or waived, permitting the holders thereof to declare the full amount
of such Senior Indebtedness due and payable, but only for the period (the
"Payment Blockage Period") commencing on the date of receipt of the Payment
Blockage Notice and ending (unless earlier terminated by notice given to the
Trustee by the Holders of such Senior Indebtedness) on the earlier of (A) the
date on which such event of default shall have been cured or waived or (B) 180
days from the receipt of the Payment Blockage Notice. Upon termination of a
Payment Blockage Period, payments on account of principal of or interest on the
Securities and redemptions, purchases or other acquisitions may be made by or
on behalf of the Company. Notwithstanding anything herein to the contrary, (A)
only one Payment Blockage Notice may be given during any period of 360
consecutive days with respect to the same event of default and any other events
of default on the same issue of Senior Indebtedness existing and known to the
person giving such notice at the time of such notice and (B) no new Payment
Blockage Period may be commenced by the holder or holders of the same issue of
Senior Indebtedness or their representative or representatives during any
period of 360 consecutive days unless all events of default which were the
object of the immediately preceding Payment Blockage Notice, and any other
event of default on the same issue of Senior Indebtedness existing and known to
the person giving such notice at the time of such notice, have been cured or
waived.
In the event that, notwithstanding the provisions of this Section
1603, payments are made by or on behalf of the Company in contravention of the
provisions of this Section 1603, such payments shall be held by the Trustee,
any Paying Agent or the Holders, as applicable, in trust for the benefit of,
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and shall be paid over to and delivered to, the holders of Senior Indebtedness
or their representative or the trustee under the indenture or other agreement
(if any), pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with the terms
of such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1602 would be applicable.
SECTION 1604. RELIANCE BY SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS. Each Holder of any Security by his acceptance thereof acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration for each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold or in continuing to hold such
Senior Indebtedness.
SECTION 1605. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Obligations due or to become due
on or in respect of Senior Indebtedness, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, the Holders of the Securities shall be subrogated to
the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article Sixteen to the rights
of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of and premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article Sixteen,
and no payments over pursuant to the provisions of this Article Sixteen to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1606. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Sixteen are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
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obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article Sixteen of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the principal of and
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 1607. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders of the Securities and the
holders of Senior Indebtedness, the subordination provided in this Article
Sixteen and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding up or liquidation
or reorganization under any applicable bankruptcy law of the Company (whether
in bankruptcy, insolvency or receivership Proceedings or otherwise), the timely
filing of a claim for the unpaid balance of such Holder's Securities in the
form required in such Proceedings and the causing of such claim to be approved.
If the Trustee does not file a claim or proof of debt in the form required in
such Proceedings prior to 30 days before the expiration of the time to file
such claims or proofs, then the holders of Senior Indebtedness, jointly, or
their representatives shall have the right to file an appropriate claim for and
on behalf of the Holders and to demand, sue for, collect, receive and receipt
for the payments and distributions in respect of the Securities which are
required to be paid or delivered to the holders of Senior Indebtedness as
provided in this Article Sixteen and to take all such other action in the name
of the Holders or otherwise, as such holder of Senior Indebtedness or
representative thereof may determine to be necessary or appropriate for the
enforcement of the provisions of this Article Sixteen.
SECTION 1608. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder or any
representative or trustee therefor, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
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impairing or releasing the subordination provided in this Article Sixteen or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness and settle or compromise Senior Indebtedness
(which, to the extent so settled and compromised, shall be deemed to have been
paid in full for all purposes hereof); (iv) apply any amounts received to any
liability of the Company owing to holders of Senior Indebtedness; and (v)
exercise or refrain from exercising any rights against the Company and any
other Person.
SECTION 1609. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
default or event of default with respect to any Senior Indebtedness or of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article Sixteen. Notwithstanding the provisions of this Article Sixteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any representative or trustee acting on their
behalf; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least three
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of and premium, if any, or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date. Nothing contained in this Article Sixteen or any other
Article of this Indenture or in any of the Securities shall prevent (a) the
Company, at any time except during the pendency of any Proceeding, or under the
conditions described in Section 1603, from making payments at any time in
respect of the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the Securities,
or the retention thereof by any Holder, if the Trustee did not have notice, as
provided in this Section 1609, that such payment would have been prohibited by
the provisions of this Article Sixteen.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a representative
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or trustee therefor) to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Sixteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Sixteen, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1610. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which any Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 1611. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. Nothing contained in this Article Sixteen or
elsewhere in this Indenture, or in any of the Securities, shall prevent the
application by the Trustee of any moneys which were deposited with it
hereunder, prior to its receipt of written notice of facts which would prohibit
such application, for the purpose of the payment of or on account of the
principal of or interest on, the Securities unless, prior to the date on which
such application is made by the Trustee, the Trustee shall be charged with
notice under Section 1609 hereof of the facts which would prohibit the making
of such application.
SECTION 1612. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Sixteen with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
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SECTION 1613. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Sixteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1612 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE SEVENTEEN
CONVERSION OF SECURITIES
SECTION 1701. APPLICABILITY OF ARTICLE; CONVERSION PRIVILEGE AND
CONVERSION PRICE.
Securities of any series which are convertible shall be convertible in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article
Seventeen. Subject to and upon compliance with the provisions of this Article
Seventeen, at any time during the period specified in the Securities, at the
option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company, at the Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
In case a Security or portion thereof is called for redemption, such conversion
right in respect of the Security or portion so called shall expire at the close
of business on the Business Day immediately preceding the Redemption Date,
unless the Company defaults in making the payment due upon redemption, in which
case such conversion right shall terminate on the date such default is cured.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") of Securities of any series
shall be specified in such Securities. The Conversion Price shall be adjusted
in certain instances as provided in Section 1704.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) of Section 1704,
the Holder of each Security, upon the conversion thereof pursuant to this
Article Seventeen subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior
to the effectiveness of the Conversion Price adjustment in respect of such
distribution pursuant to paragraph (4) of Section 1704, shall be entitled to
receive for each share of Common Stock into which such Security is converted,
the portion of the evidence of indebtedness, shares of Capital Stock or assets
so distributed applicable to one share of Common Stock; provided, however,
that, at the election of the Company (whose election shall be evidenced by a
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Board Resolution filed with the Trustee) with respect to all Holders so
converting, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution filed with the Trustee). If
any conversion of a Security entitled to the benefits described in the
immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder of the Security so
converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a Board
Resolution filed with the Trustee) to distribute to such Holder a due bill for
the evidences of indebtedness, shares of Capital Stock or assets to which such
Holder is so entitled, provided that such due bill (i) meets any applicable
requirements of the principal national securities exchange or other market on
which the Common Stock is then traded, and (ii) requires payment or delivery of
such evidences of indebtedness or assets no later than the date of payment or
delivery thereof to holders of Common Stock receiving such distribution.
SECTION 1702. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency maintained by the
Company pursuant to Section 1002, accompanied by written notice to the Company
at such office or agency that the Holder elects to convert such Security or, if
less than the entire principal amount thereof is to be converted, the portion
thereof to be converted and shall comply with any additional requirements set
forth in such Security. Securities surrendered for conversion during the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (except for Securities the Maturity of which is prior to such Interest
Payment Date) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of Securities
being surrendered for conversion and such interest shall be paid on such
Interest Payment Date as provided in Section 307. Except as provided in the
preceding sentence, no payment or adjustment shall be made upon any conversion
on account of any interest accrued on the Securities surrendered for conversion
or on account of any dividends on the Common Stock issued upon conversion.
The Company's delivery to the Holder of the fixed number of shares of
the Common Stock of the Company (and any cash in lieu of any fractional share
of Common Stock) into which the Security is convertible shall be deemed to
satisfy the Company's obligation to pay the principal amount of the Security
and all accrued interest and original issue discount that has not previously
been paid. The shares of Common Stock of the Company so delivered shall be
treated as issued first in payment of accrued interest and original issue
discount and then in payment of principal. Thus, accrued interest and original
issue discount shall be treated as paid, rather than cancelled, extinguished or
forfeited.
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Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1703.
In the case of any Security which is converted in part only, as
promptly as practicable on or after the conversion date the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder thereof (or the Depositary in the case of a Global Security), at the
expense of the Company, a new Security or Securities, of authorized
denominations in aggregate principal amount equal to the unconverted portion of
the principal amount of such Security.
SECTION 1703. FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion
at one time by the same Holder, the number of full shares of Common Stock which
shall be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (rounded
to the nearest cent) in respect of such fraction in an amount equal to the same
fraction of the Closing Price per share of the Common Stock on the day of
conversion (or, if such day is not a Trading Day, on the Trading Day
immediately preceding such day).
SECTION 1704. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustment from time to time
as follows:
(1) If the Company pays or makes a dividend or other
distribution (a) on its Common Stock exclusively in Common Stock or
(b) on any other class of Capital Stock of the Company, which dividend
or distribution includes Common Stock of the Company, the Conversion
Price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution (the "Dividend Record Date") shall
be reduced by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock of the
Company outstanding at the close of business on the Dividend Record
Date and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other
distribution. Such reduction shall become effective immediately after
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the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (1), the number of
shares of Common Stock of the Company at any time outstanding shall
not include shares held in the treasury of the Company, but shall
include shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock. The Company shall not
pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(2) Subject to paragraph (6) of this Section, if the
Company pays or makes a dividend or other distribution on its Common
Stock consisting exclusively of Short Term Rights (as defined below),
or otherwise issues Short Term Rights to all holders of its Common
Stock, the Conversion Price in effect at the opening of business on
the day following the record date for the determination of holders of
Common Stock entitled to receive such Short Term Rights (the "Rights
Record Date") shall be reduced by multiplying such Conversion Price by
a fraction of which the numerator shall be the number of shares of
Common Stock of the Company outstanding at the close of business on
the Rights Record Date plus the number of shares of Common Stock of
the Company which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock of the
Company outstanding at the close of business on the Rights Record Date
plus the number of shares of Common Stock so offered for subscription
or purchase. Such reduction shall become effective immediately after
the opening of business on the day following the Rights Record Date.
For the purposes of this paragraph (2), the number of shares of Common
Stock of the Company at any time outstanding shall not include shares
held in the treasury of the Company, but shall include shares issuable
in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock of the Company. The Company shall not issue any
rights, options or warrants in respect of shares of its Common Stock
held in the treasury of the Company. When used in this Section 1704,
the term "Short Term Rights" shall mean rights, warrants or options
entitling the holders thereof (for a period commencing no earlier than
the Rights Record Date and expiring not more than 45 days after the
Rights Record Date) to subscribe for or purchase shares of Common
Stock of the Company at a price per share less than the current market
price per share (determined as provided in paragraph (7) of this
Section 1704) of the Common Stock of the Company on the Rights Record
Date.
(3) In case outstanding shares of Common Stock of the
Company shall be subdivided into a greater number of shares of Common
Stock, the Conversion Price in effect at the opening of business on
the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
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increased, such reduction or increase, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(4) Subject to the last sentence of this paragraph (4) of
this Section, if the Company, by dividend or otherwise, (a)
distributes to all holders of its Common Stock evidences of its
indebtedness, shares of any class of Capital Stock of the Company or
other assets (other than cash dividends out of current or retained
earnings), or (b) distributes to substantially all holders of Common
Stock rights or warrants to subscribe for securities (other than Short
Term Rights to which paragraph (2) of this Section 1704 applies), the
Conversion Price shall be reduced by multiplying such Conversion Price
by a fraction of which the numerator shall be the current market price
per share (determined as provided in paragraph (7) of this Section
1704) of the Common Stock of the Company on the Reference Date (as
defined below) less the fair market value (as determined in good faith
by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee), on the
Reference Date, of the portion of the evidences of indebtedness and
other assets so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (collectively, the "Market
Value of the Distribution") and the denominator shall be such current
market price per share of the Common Stock of the Company. Such
reduction shall become effective immediately prior to the opening of
business on the day (the "Reference Date") following the later of (a)
the date fixed for the payment of such distribution and (b) the date
20 days after notice relating to such distribution is required to be
given pursuant to Section 1706(a). If the Board of Directors
determines the fair market value of any distribution for purposes of
this paragraph (4) by reference to the actual or when issued trading
market for any securities comprising such distribution, it must in
doing so consider the prices in such market over the same period used
in computing the current market price per share pursuant to paragraph
(7) of this Section 1704. In the event that, with respect to any
distribution to which this paragraph (4) of Section 1704 would
otherwise apply, the Market Value of the Distribution is greater than
the current market price per share of the Common Stock (such
distribution being referred to herein as an "Unadjusted
Distribution"), then the adjustment provided by this paragraph (4)
shall not be made and in lieu thereof the provisions of Section 1711
shall apply with respect to such Unadjusted Distribution.
(5) The Company may, but shall not be required to, make
such reductions in the Conversion Price, in addition to those required
by paragraphs (1), (2), (3), and (4) of this Section 1704, as it
considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not
be taxable to the recipients. In addition, the Company, from time to
time, may decrease the Conversion Price by any amount and for any
reason, temporarily or otherwise, including situations where the Board
of Directors determines such decrease to be fair and appropriate with
respect to transactions in which holders of Common Stock have the
right to participate.
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(6) Rights or warrants issued or distributed by the Company
to all holders of its Common Stock entitling the holders thereof to
subscribe for or purchase shares of Common Stock or Preferred Stock,
which rights or warrants (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are also
issued or distributed in respect of future issuances of Common Stock,
in each case in clauses (i) through (iii) until the occurrence of a
specified event or events ("Trigger Events"), shall for purposes of
this Section 1704 not be deemed issued or distributed until the
occurrence of the earliest Trigger Event. Each share of Common Stock
issued upon conversion of Securities pursuant to this Article
Seventeen shall be entitled to receive the appropriate number of
Common Stock purchase rights (the "Rights"), if any, and the
certificates representing the Common Stock issued upon conversion
shall bear such legends, if any, in each case as provided by and
subject to the terms of the Stockholders Rights Plan adopted by the
Board of Directors on December 11, 1989 (the "Rights Plan") as in
effect at the time of such conversion. Notwithstanding anything to
the contrary in this Article Seventeen, there shall not be any
adjustment to the Conversion Price as a result of (i) the distribution
of separate certificates representing the Rights; (ii) the occurrence
of certain events entitling holders of Rights to receive, upon
exercise thereof, Common Stock or other securities of the Company or
other securities of another corporation; or (iii) the exercise of such
Rights, all in accordance with the Rights Plan. No adjustment in the
Conversion Price need be made for rights to purchase or the sale of
Common Stock pursuant to a Company plan providing for reinvestment of
dividends or interest.
(7) For the purpose of any computation under paragraph (2),
(4) or (5) of this Section 1704, the "current market price" per share
of Common Stock of the Company on any date shall be deemed to be the
average of the daily Closing Prices for the 15 consecutive Trading
Days selected by the Company commencing not more than 30 Trading Days
before, and ending not later than, the date in question.
(8) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the Conversion Price; provided, however, that any
adjustments which by reason of this paragraph (9) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article Seventeen
shall be made to the nearest cent or to the nearest one-hundredth of a
share of Common Stock, as the case may be.
(9) Anything herein to the contrary notwithstanding, in the
event the Company shall declare any dividend or distribution requiring
an adjustment in the Conversion Price hereunder and shall, thereafter
and before the payment of such dividend or distribution to
stockholders, legally abandon its plan to pay such dividend or
distribution, the Conversion Price then in effect hereunder, if
changed to reflect such dividend or distribution, shall upon the legal
abandonment of such plan be changed to the Conversion Price which
would have been in effect at the time of such abandonment (after
giving effect to all other adjustments not so legally abandoned
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pursuant to the provisions of this Article Seventeen) had such
dividend or distribution never been declared.
(10) Notwithstanding any other provision of this Section
1704, no adjustment to the Conversion Price shall reduce the
Conversion Price below the then par value per share of the Common
Stock of the Company, and any such purported adjustment shall instead
reduce the Conversion Price to such par value. Notwithstanding the
foregoing sentence, the Company hereby covenants that it will from
time to time take all such action as may be required to assure that
the par value per share of the Common Stock is at all times equal to
or less than the Conversion Price.
(11) In the event that this Article Seventeen requires
adjustments to the Conversion Price under more than one of paragraphs
(1), (2), (3) or (4) of this Section 1704, and the record or effective
dates for the transaction giving rise to such adjustments shall occur
on the same date, then such adjustments shall be made by applying (to
the extent they are applicable), first, the provisions of paragraph
(3) of this Section 1704, second, the provisions of paragraph (1) of
this Section 1704, third, the provisions of paragraph (4) of this
Section 1704 and, fourth, the provisions of paragraph (2) of this
Section 1704. Anything herein to the contrary notwithstanding, no
single event shall require or result in duplicative adjustments in the
Conversion Price pursuant to this Section 1704. After an adjustment
to the Conversion Price under this Article Seventeen, any subsequent
event requiring an adjustment under this Article Seventeen shall cause
an adjustment to the Conversion Price as so adjusted. If, after an
adjustment, a Holder of a Security upon conversion of such Security
receives shares of two or more classes of Capital Stock of the
Company, the Conversion Price shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any
such class of Capital Stock as is contemplated by this Article
Seventeen with respect to the Common Stock in this Article Seventeen.
SECTION 1705. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion
Price in accordance with Section 1704 or Section 1711 and shall prepare an
Officer's Certificate setting forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed (with a copy to the Trustee) at each
office or agency maintained for the purpose of conversion of any Securities
pursuant to Section 1002; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register.
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SECTION 1706. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(1) the Company shall take any action that would require
a Conversion Price adjustment pursuant to Section 1704 or Section 1711; or
(2) there shall occur 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, or the sale, transfer or lease of all or substantially
all of the assets of the Company and for which approval of any stockholders of
the Company is required; or
(3) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company,
then the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 10 days prior to the applicable record,
effective or expiration date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of any dividend,
distribution or granting of rights, warrants or options, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and, if applicable, the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
SECTION 1707. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, a number of shares of Common
Stock for the conversion of all outstanding Securities of any series which is
convertible into Common Stock.
SECTION 1708. TAXES ON CONVERSION.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
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Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
SECTION 1709. COVENANTS AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be duly and validly
issued, fully paid and nonassessable, free of preemptive or any similar rights,
and, except as provided in Section 1708, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
SECTION 1710. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1711. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS; SPECIAL DISTRIBUTIONS.
If any of the following shall occur, namely: (i) any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of
Securities (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), (ii) any consolidation or merger to which the Company is a party
other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a
change in name, or 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) in,
outstanding shares of Common Stock or (iii) any sale or conveyance of all or
substantially all of the property or business of the Company as an entirety,
then the Person formed by such consolidation or resulting from such merger or
which acquires such properties or assets, as the case may be, shall as a
condition precedent to such transaction execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 1701, to convert such Security
only into the kind and amount of securities, cash and other property
receivable, if any, upon such consolidation, merger, sale, transfer or lease by
a holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, sale, transfer or lease; provided that the kind and amount of
securities, cash and other property so receivable shall be determined on the
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basis of the following assumptions. The holder of Common Stock referred to in
the foregoing sentence:
(1) is not (a) a Person with which the Company consolidated, (b) a
Person into which the Company merged or which merged into the Company,
or (c) a Person to which such sale, transfer or lease was made (any
Person described in the foregoing clauses (a), (b), or (c), hereinafter
referred to as a "Constituent Person"), or (d) an Affiliate of a
Constituent Person; and
(2) failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale, transfer or lease (provided that if the
kind or amount of securities, cash and other property receivable upon
such consolidation, merger, sale transfer or lease is not the same for
each share of Common Stock of the Company in respect of which such
rights of election shall not have been exercised, then for the purpose
of this Section 1711 the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale, transfer or
lease shall be deemed to be the kind and amount so receivable per share
by a plurality of such shares of Common Stock).
Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article Seventeen. If, in the case of any such consolidation, merger,
sale transfer or lease the stock or other securities and property (including
cash) receivable thereupon by a holder of Common Stock includes shares of stock
or other securities and property of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger,
sale, transfer or lease then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of
Directors of the Company shall reasonably consider necessary by reason of the
foregoing. The above provisions of this Section 1711 shall similarly apply to
successive consolidations, mergers, sales, transfers or leases.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1711, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, sale, transfer or lease
and any adjustment to be made with respect thereto.
If the Company makes a distribution to all holders of its Common Stock
that constitutes an Unadjusted Distribution pursuant to the last sentence of
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paragraph (4) of Section 1704, then, from and after the record date for
determining the holders of Common Stock entitled to receive such distribution
(the "Distribution Record Date"), a Holder of a Security who converts such
Security in accordance with the provisions of this Indenture shall, upon
conversion, be entitled to receive, in addition to the shares of Common Stock
into which the Security is convertible, the kind and amount of evidences of
indebtedness, shares of Capital Stock, or other assets or subscription rights
or warrants, as the case may be, comprising the distribution that such Holder
would have received if such Holder had converted the Security immediately prior
to the Distribution Record Date.
SECTION 1712. TRUSTEE ADJUSTMENT DISCLAIMER; COMPANY DETERMINATION
FINAL.
The Trustee has no duty to determine when an adjustment under this
Article Seventeen should be made, how it should be made or what it should be.
The Trustee has no duty to determine whether a supplemental indenture under
Section 1711 need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article Seventeen. Any determination
that the Company or the Board of Directors must make pursuant to this Article
Seventeen is conclusive, absent manifest error.
SECTION 1713. WHEN NO ADJUSTMENT REQUIRED.
(a) Except as expressly set forth in Section 1704, no
adjustment in the Conversion Price shall be made because the Company issues, in
exchange for cash, property or services, shares of its Common Stock, or any
securities convertible into or exchangeable for shares of its Common Stock, or
securities (including warrants, rights and options) carrying the right to
subscribe for or purchase shares of its Common Stock or such convertible or
exchangeable securities.
(b) Notwithstanding anything herein to the contrary, no
adjustment in the Conversion Price shall be made pursuant to Section 1704 in
respect of any dividend or distribution if the Holders may participate therein
(on a basis to be determined in good faith by the Board of Directors) and
receive the same consideration they would have received if they had converted
the Securities immediately prior to the record date with respect to such
dividend or distribution.
SECTION 1714. EQUIVALENT ADJUSTMENTS.
In the event that, as a result of an adjustment made pursuant to
Section 1704 above, the holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of the
Company other than shares of its Common Stock, thereafter the Conversion Price
of such other shares so receivable upon conversion of any Securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
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equivalent as practicable to the provisions with respect to Common Stock
contained in this Article Seventeen.
ARTICLE EIGHTEEN
EXCHANGE OF SECURITIES
SECTION 1801. APPLICABILITY OF ARTICLE; RIGHT OF EXCHANGE.
Securities of any series which are exchangeable shall be exchangeable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series or as specified in
such Securities) in accordance with this Article Eighteen. Subject to and upon
compliance with the provisions of this Article Eighteen and the Securities, at
the option of the Holder, any Security or any portion of the principal amount
thereof which is $1,000 or an integral multiple of $1,000 may, at any time
during the period specified in the Securities, be exchanged for fully paid and
non-assessable Exchange Securities (and cash and other property in certain
events or cash at the Company's option, pursuant to Section 1814) at the
Exchange Rate provided. In case a Security or portion thereof is called for
redemption, such right of exchange in respect of the Security or portion so
called shall expire at the close of business on the day preceding the
Redemption Date or, in the case of Securities called for redemption in
accordance with Section 1811, at the close of the business on the fourteenth
day after the date of notice of redemption is mailed, unless the Company
defaults in making the payment due upon redemption, in which case such right of
exchange shall terminate on the date such default is cured.
The rate at which Exchange Securities shall be delivered upon exchange
(herein called the "Exchange Rate") of Securities of any series shall be
specified in such Securities. The Exchange Rate shall be subject to adjustment
as provided in Sections 1804, 1805, 1810 and 1813.
SECTION 1802. METHOD OF EXCHANGE.
In order to exercise the right of exchange, the Holder of any Security
to be exchanged shall surrender such Security to the Escrow Agent at the office
or agency maintained for that purpose pursuant to Section 1002, accompanied by
written notice to the Company and the Escrow Agent that the Holder elects to
exchange such Security or, if less than the entire principal amount of a
Security is to be exchanged, the portion thereof to be exchanged. Such notice
shall also state the name or names (with addresses) in which the certificate or
certificates for Exchange Securities which shall be issuable on such exchange
shall be issued. Securities surrendered for exchange shall be accompanied (if
so required by the Company or Escrow Agent) by proper assignments thereof to
the Company or in blank for transfer.
If the Company does not elect to deliver cash in lieu of Exchange
Securities pursuant to Section 1815 hereof, as promptly as practicable after
the receipt of such notice and the proper surrender of such Security as
aforesaid (subject, however, to the following paragraph of this Section 1802
and to Section 1815), the Company shall deliver or cause the Escrow Agent to
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deliver at said office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full Exchange Securities
deliverable upon the exchange of any such Security (or specified portion
thereof) and a check for any cash apportioned thereto and provision shall be
made for any fraction of a share as provided in Section 1803. Such exchange
shall be deemed to have been effected immediately prior to the close of
business on the date on which such notice shall have been received by the
Company and the Escrow Agent and such Security shall have been properly
surrendered as aforesaid, and at such time the rights of the Holder of such
Security as a Holder shall cease and the person or persons in whose name or
names any certificate or certificates for Exchange Securities shall be
deliverable upon such exchange shall, as between such person or persons and the
Company, be deemed to have become the holder or holders of record of the shares
represented thereby.
Delivery of such certificate or certificates and of any check for any
cash apportioned thereto and for cash in lieu of fractional shares may be
delayed for a reasonable period of time at the request of the Company (which
shall be made by an Officers' Certificate) in order to effectuate the
calculation of the adjustments of the Exchange Securities and cash apportioned
thereto pursuant to this Article Eighteen, to obtain any certificate
representing securities to be delivered or to complete any reapportionment of
the Exchange Securities, cash and other property apportioned thereto which is
required by this Article Eighteen. If, between any date an exchange under this
Section is deemed effected and delivery of the applicable security or
securities, such security or securities shall cease to have any or certain
rights or there shall occur a record date or effective date of a transaction to
which Section 1804, 1805 or 1810 applies, the person entitled to receive such
security or securities shall be entitled only to receive such security or
securities as so modified and any proceeds received thereon on or after the
date and time on which such an exchange is deemed effected. The Company, the
Trustee and the Escrow Agent shall not otherwise be liable with respect to the
modification, from the date such an exchange is deemed effected to the date of
such delivery, of such security or securities.
Except as otherwise expressly provided in this Indenture or in
Securities of any series, no payment or adjustment shall be made upon any
exchange on account of any interest accrued on the Securities surrendered for
exchange or on account of any dividends on the Exchange Securities delivered
upon such exchange.
In the case of any Security which is exchanged in part only, upon such
exchange the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof (or the Depositary in case of a Global Security),
at the expense of the Company (except for transfer taxes in the case that the
new Security is to be registered in a name different than that in which the old
Security was issued), a new Security or Securities of authorized denominations
in principal amount equal to the unexchanged portion of the principal amount of
such Security.
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SECTION 1803. FRACTIONAL INTERESTS.
No fractional Exchange Securities shall be delivered upon exchange of
Securities. If more than one Security shall be surrendered for exchange at one
time by the same Holder, the number of full shares which shall be delivered
upon exchange shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of any fractional share which would otherwise
be deliverable upon exchange of any Security or Securities (or specified
portions thereof), the Escrow Agent on behalf of the Company shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
same fraction of the Market Price per share of the Exchange Securities on the
Business Day next preceding the date of exchange. The Escrow Agent shall
obtain the funds for payment of such fractional interests by (i) the sale of
Exchange Securities held by it, to the extent that after such sale the Exchange
Securities remaining on deposit with the Escrow Agent shall be sufficient to
allow the exchange of all outstanding Securities of that series for Exchange
Securities on the basis of the then applicable Exchange Rate or (ii) at the
option of the Company, sufficient cash contributions from the Company. The
Company agrees to furnish any additional moneys required to permit such
payment.
SECTION 1804. ADJUSTMENT OF EXCHANGE RATE.
The Exchange Rate shall be subject to adjustment as follows:
(1) In the event the issuer of Exchange Securities shall, (i) pay
a dividend on the Exchange Securities in Exchange Securities, (ii) subdivide
outstanding Exchange Securities into a greater number of Exchange Securities,
(iii) combine outstanding Exchange Securities into a smaller number of Exchange
Securities, or (iv) issue, by reclassification of Exchange Securities, any
shares of its Capital Stock (which in any such case shall apply to the Exchange
Securities held by the Escrow Agent under the Escrow Agreement), the Exchange
Rate in effect immediately prior thereto shall be proportionately adjusted so
that the Holder of any Securities thereafter surrendered for exchange shall be
entitled (subject to Section 1814 hereof) to receive the number and kind of
Exchange Securities (in addition to any cash apportionment thereto) which he
would have owned or have been entitled to receive after the happening of any of
the events described above had such Securities been exchanged immediately prior
to the record date (or if there is no record date, the effective date) of such
event. Such adjustments shall be made whenever any of the events listed above
shall occur and shall become effective as of immediately after the close of
business on the record date in the case of a stock dividend and shall become
effective as of immediately after the close of business on the effective date
in the case of a subdivision or combination or reclassification. Any Holder
surrendering any Securities after such record date or such effective date, as
the case may be, shall be entitled to receive Exchange Securities at the
Exchange Rate as so adjusted pursuant to this Section 1804 (1) (subject to
Section 1813 hereof), in addition to any cash apportioned thereto.
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(2) Notwithstanding the foregoing provisions, no adjustment in the
Exchange Rate shall be required unless such adjustment would require an
increase or decrease in such Exchange Rate of more than 1%; provided, however,
that any adjustments which by reason of this paragraph (2) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.
(3) All calculations under this Section 1804 shall be made to the
nearest one-ten-thousandth (.0001) of a share.
(4) Whenever the Exchange Rate is adjusted as herein provided, the
Company shall determine the adjusted Exchange Rate in accordance with this
Section 1804 and shall prepare a certificate setting forth such adjusted
Exchange Rate and any cash and other property apportioned to the Exchange
Securities and showing in detail the facts upon which such adjustments are
based, and such certificate shall forthwith be filed with the Trustee and the
Escrow Agent and a notice stating the Exchange Rate has been adjusted and
setting forth the adjusted Exchange Rate and any cash or other property
apportioned to the Exchange Securities shall as soon as practicable be mailed
by or on behalf of the Company to the Holders at their last addresses as they
shall appear in the Security Register.
SECTION 1805. ESCROW AGREEMENT.
(1) Simultaneously with or prior to the execution and delivery of
Securities of any series which are exchangeable as provided in this Article
Eighteen, the Company will enter into an Escrow Agreement with the Escrow
Agent, pursuant to which the Company will deposit with the Escrow Agent
Exchange Securities. The Escrow Agent shall be the Exchange Agent for the
exchange of Securities of such series for the Exchange Securities as the
Holders of all outstanding Securities of such series shall from time to time be
entitled to receive pursuant to this Article Eighteen upon exchange thereof.
(2) The Company shall be entitled to (i) interest payments on any
debt securities included in the Exchange Securities which Holders of Securities
may be entitled to receive on exchange hereunder and (ii) cash dividends paid
on the Exchange Securities held by the Escrow Agent. The Escrow Agent shall
retain and apply as hereinafter provided all cash dividends paid on securities
other than the Exchange Securities held by the Escrow Agent under the Escrow
Agreement.
(3) In case the issuer of the Exchange Securities shall, at any
time, make any distribution of money, securities, or other property on Exchange
Securities held by the Escrow Agent under the Escrow Agreement (other than (i)
cash dividends to which the Company is entitled and interest paid on debt
securities, as specified in paragraph (2) above, (ii) dividends, subdivisions,
combinations and reclassifications for which an adjustment in the Exchange Rate
is made pursuant to Section 1804 and (iii) securities or other property
received in a transaction to which Section 1810 applies) or shall grant to the
Company (with respect to any securities or property held by the Escrow Agent)
or the Escrow Agent, as the holder thereof, any transferable subscription
rights, options, warrants or other similar transferable rights, the Escrow
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Agent shall, as soon as reasonably practicable after its receipt thereof,
notify the Company of such receipt and the Company, in its sole discretion, may
promptly cause the Escrow Agent to offer such rights, options, warrants,
securities or other property to the Company at the Market Price therefor if
there is an applicable market established for such securities, property,
subscription rights, options, warrants or other such rights, or at such price
as a major bracket investment banker selected by the Company and acceptable to
the Trustee shall determine. If the Company does not cause the Escrow Agent to
make such an offer within five Business Days of any such distribution or if the
Company does not accept such an offer within five Business Days of receipt of
such offer, the Escrow Agent shall, to the extent legally permissible, sell all
such securities and other property received by way of distribution and all such
rights for cash in such manner as the Company shall instruct in writing and
shall apply the proceeds from the sale thereof as hereinafter provided. To the
extent that the Company shall, within ten days of such notification, furnish
the Escrow Agent with (x) an Opinion of Counsel to the effect that such
distribution or grant or sale of the securities or other property received on
such distribution or the rights received by such grant is taxable to the
Company or the Escrow Agent and (y) an Officers' Certificate as to the amount
of Federal, State and local tax payable by the Company and the Escrow Agent as
a result of such distribution or grant and an amount estimated to be payable as
a result of such sale (computed as provided in Section 1815), the Escrow Agent
shall pay to, or to the order of, the Company, or itself, in the case of taxes
payable by it, from the cash received in such distribution, if any, or cash
apportioned to Exchange Securities hereunder or from the net cash proceeds
received from such sale, the amount of such tax. In the case of taxes
estimated to be payable as a result of such sale, the Company shall deliver an
Officers' Certificate within 10 days after completion of such sale stating the
actual taxes payable and appropriate adjustment of such payments shall
thereupon be made. The remaining portion of such cash received, if any, and
net cash proceeds shall be apportioned equally among the Exchange Securities
for which outstanding Securities of the applicable series are exchangeable as
of immediately after the close of business on the record date for the
distribution or grant to which this paragraph (3) applies, or if there is no
such record date, the effective date of such distribution or grant. Any Holder
surrendering any Securities after such record date, or such effective date, as
the case may be, and prior to the distribution date shall be entitled to
receive, in addition to the Exchange Securities for which such Securities are
exchangeable (and any cash theretofore apportioned to such shares hereunder),
the amount of cash so apportioned to such Exchange Securities. Whenever a
transaction occurs to which this paragraph (3) applies, the Company shall
determine the Exchange Rate and the cash apportioned to the Exchange Securities
as adjusted in accordance with this paragraph (3) and shall prepare an
Officers' Certificate setting forth the Exchange Rate and the cash apportioned
to the Exchange Securities held by the Escrow Agent under the Escrow Agreement
as so adjusted and showing in detail the facts upon which such calculation is
based, and such certificate shall forthwith be filed with the Trustee and
Escrow Agent and a notice stating that a transaction to which this paragraph
(3) applies has occurred and setting forth the Exchange Rate and the cash
apportioned to the Exchange Securities, as adjusted in accordance with this
Section 1805, shall as soon as practicable be mailed by or on behalf of the
Company to the Holders at their last addresses as they shall appear in the
Security Register.
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(4) If the issuer of Exchange Securities, at any time any
Securities of a series which is exchangeable for such Exchange Securities are
outstanding, shall distribute or grant to holders of any Exchange Securities
held or required to be held by the Escrow Agent under the Escrow Agreement any
nontransferable subscription rights, options, warrants or other similar
nontransferable rights, securities or property, the Company shall elect to do
any of the following: (i) to the extent permissible by the terms of said
subscription rights, options, warrants or other similar non-transferable
rights, securities or property, cause such rights, securities or property to be
distributed pro rata by the Escrow Agent to the Holders of record of Securities
shown in the Security Register as of immediately after the close of business on
the record date (or if there is no record date, the close of business on the
effective date) for such distribution or grant, but subject to the provisions
of Sections 1807, 1813 and 1815, (ii) provide to the Escrow Agent the necessary
funds and direct the Escrow Agent to exercise such options, warrants, or rights
and to hold the securities or other property received upon such exercise for
the benefit of Holders of Securities of such series or (iii) direct the Escrow
Agent to retain such options, warrants, rights, securities or property for
delivery to the Holders of Securities of such series upon the exchange of such
Securities. Any options, warrants, rights, securities or property retained
pursuant to clause (iii) above and the amount of any proceeds received by the
Escrow Agent pursuant to clause (ii) above (less any proceeds as determined
pursuant to the last three sentences of this paragraph (4)) delivered to or
sold or segregated for the benefit of the Company and less the amount of any
taxes payable by the Company or the Escrow Agent with respect to such
distribution, grant or sale, as determined pursuant to Sections 1807, 1813 and
1815, shall be apportioned equally among the Exchange Securities for which
outstanding Securities of such series are exchangeable as of immediately after
the close of business on the record date for the distribution or grant to which
this paragraph (4) applies or, if there is no such record date, the effective
date of such distribution or grant. Any Holder exchanging any Securities after
such record date, or such effective date, as the case may be, shall be entitled
to receive the Exchange Securities for which such Securities are exchangeable
and the amount of cash, or any such options, warrants, rights, securities or
property, so apportioned to such Exchange Securities, but subject to the
provisions of the last three sentences of this paragraph and Sections 1807,
1813 and 1815. Notwithstanding the foregoing, any such options, warrants or
rights which may expire prior to the last date of the period during which
Securities of the applicable series are exchangeable for Exchange Securities
may not be retained pursuant to clause (iii) of this paragraph (4) beyond the
expiration date thereof, but must be distributed or exercised pursuant to
clause (i) or (ii) of this paragraph (4). The Company shall be promptly repaid
any amounts supplied by it pursuant to the foregoing clause (ii) of this
paragraph (4). If the Company is entitled to any amount because it provided
funds to pay for an exercise pursuant to clause (ii) of this paragraph (4), it
shall receive such amount in cash held by the Escrow Agent, but if the amount
of such cash held by the Escrow Agent shall be less than the amount due the
Company, the Escrow Agent shall (x) as soon as reasonably practicable and to
the extent legally permissible, sell in accordance with written instructions
received from the Company such number of Exchange Securities or other property
held or required to be held by the Escrow Agent, as may be necessary to realize
an amount of proceeds which, after payment of any taxes by the Company and the
Escrow Agent on such sale (which shall be evidenced by an Opinion of Counsel
and Officers' Certificate in the manner specified in Sections 1807, 1813 and
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<PAGE> 107
1815), shall equal the amount of any such insufficiency, or (y) if in the
opinion of the Company such sale is not advisable or legally permissible,
segregate for the benefit of the Company or deliver to the Company an amount of
property, held or required to be held by the Escrow Agent, having a market
value, as determined by an Officers' Certificate, equal to the amount of such
insufficiency plus the amount of taxes payable upon the delivery or sale
thereof (which shall be evidenced as aforementioned). Following such sale,
segregation or delivery, the Exchange Securities, cash and other property, held
by the Escrow Agent shall be proportionately adjusted so as to be apportioned
equally to the Securities of the applicable series outstanding as of
immediately after the close of business on the record date for the distribution
or grant to which this paragraph (4) applies or, if there is no record date,
the effective date of such distribution or grant.
(5) The Escrow Agreement shall set forth whether the Company shall
be entitled to any net income or gain resulting from investments of cash made
by the Escrow Agent pursuant to the Escrow Agreement.
(6) The Company shall have the full and unqualified right and
power to exercise any rights to vote, or to give consents to take any other
action in respect of, the Exchange Securities or any other security held in
escrow under the Escrow Agreement at any time, and the Escrow Agent shall have
no duty to exercise any rights.
(7) The Company shall be entitled, out of the property held by the
Escrow Agent, to such number of Exchange Securities and such amount of any cash
(investments contemplated by this Section 1805 being deemed for these purposes
to be cash and to be valued at their outstanding principal balance) and other
property as shall be in excess of the number of Exchange Securities and the
amount of cash and other property apportioned thereto, all held by the Escrow
Agent, which would be deliverable upon the exchange of all Securities of the
applicable series then outstanding, and such excess shall be held by the Escrow
Agent for the account of the Company and, subject to the limitations contained
in the Escrow Agreement, released to the Company upon demand. With respect to
releases of cash, the Escrow Agent shall release cash or such of the investment
securities so held as the Company may designate.
(8) Upon expiration of the right to surrender Securities of the
applicable series for exchange and when all other obligations of the Company
shall have been satisfied under the Escrow Agreement, all cash and investments
and other property held by the Escrow Agent under the Escrow Agreement which
are not required with respect to Securities previously surrendered for exchange
will, subject to the limitations contained in the Escrow Agreement, be
delivered by the Escrow Agent to the Company.
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<PAGE> 108
SECTION 1806. NOTICE OF CERTAIN EVENTS.
In case at any time:
(1) the issuer of the Exchange Securities shall declare a dividend
(or any other distribution) on the Exchange Securities; or
(2) the issuer of the Exchange Securities shall authorize the
granting to holders of Exchange Securities of subscription rights, options,
warrants or other similar rights; or
(3) there shall occur any reclassification of Exchange Securities
(other than a subdivision or combination of outstanding shares of Exchange
Securities) or any consolidation or merger to which the issuer of the Exchange
Securities is a party and for which approval of any stockholders of such issuer
is required, or the sale or transfer of all or substantially all of the assets
of such issuer; or
(4) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the issues of the Exchange Securities;
then the Company shall cause to be filed at the office or agency maintained for
the purpose of exchange of Securities pursuant to Section 1002, and shall cause
to be mailed to the Holders of Securities at their last addresses as they shall
appear in the Security Register, as promptly as practicable after receipt by
the Company of notice of any record date or other applicable date hereinafter
specified a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, or grant of rights, or, if a record
is not to be taken, the date as of which the holders of Exchange Securities of
record to be entitled to such dividend, distribution or grant of rights is to
be determined, or (ii) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Exchange Securities shall be entitled to exchange their Exchange Securities for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
SECTION 1807. TRANSFER TAXES.
The Company will pay any and all documentary, stamp, transfer or
similar taxes that may be payable in respect of the transfer and delivery of
Exchange Securities pursuant hereto; provided, however, that the Company shall
not be required to pay any such tax which may be payable in respect of any
transfer involved in the delivery of Exchange Securities in a name other than
that in which the Securities so exchanged were registered and no such transfer
or delivery shall be made unless and until the person requesting such transfer
has paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid; and, provided,
further, that the Company shall not be obligated to pay any withholding taxes
payable by Holders due to the exchange of any Securities.
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<PAGE> 109
SECTION 1808. SHARES FREE AND CLEAR.
The Company hereby warrants that, upon exchange of a Security pursuant
to this Indenture, the Holder thereof shall receive the Exchange Securities and
any cash and other property apportioned thereto for which such Security is at
such time exchangeable pursuant to this Indenture free and clear of any and all
liens, claims, charges and encumbrances of the Company and of any Person
claiming through the Company. Except as provided in Section 1807, the Company
will pay all liens and charges with respect to the delivery of Exchange
Securities and any cash apportioned thereto in exchange for Securities
hereunder.
The Company will endeavor promptly to comply and to cause the Escrow
Agent to comply with all Federal and state securities laws regulating the offer
and delivery of Exchange Securities upon exchange of Securities, if any.
SECTION 1809. CANCELLATION OF EXCHANGED SECURITIES.
All Securities delivered for exchange shall be delivered by the Escrow
Agent to the Trustee for cancellation and the Trustee shall dispose of the same
as provided in Section 309.
SECTION 1810. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS OF THE ISSUER OF EXCHANGE SECURITIES.
In the case of any consolidation or merger of the issuer of Exchange
Securities with or into any other corporation or of any sale or transfer of all
or substantially all of the assets of the issuer of Exchange Securities or of
any voluntary or involuntary dissolution, liquidation or winding up of the
issuer of Exchange Securities, the Company shall execute and deliver to the
Trustee a supplemental indenture satisfactory in form to the Trustee, and to
the Escrow Agent a supplemental escrow agreement satisfactory in form to the
Escrow Agent, providing that the holder of each Security of the applicable
series then outstanding shall have the right thereafter to exchange such
Security for (i) the kind and amount of securities and other property
receivable upon such consolidation, merger, sale, transfer, dissolution,
liquidation or winding up by a holder of the number of Exchange Securities for
which such Security was exchangeable immediately prior to such consolidation,
merger, sale, transfer, dissolution, liquidation or winding up had such holder
of Exchange Securities failed to exercise any rights of election as to the kind
or amount of securities or other property receivable upon such consolidation,
merger, sale, transfer, dissolution, liquidation or winding up, and (ii) the
kind and amount of securities (other than Exchange Securities) and other
property apportioned to the Exchange Securities for which such Security was
exchangeable immediately prior to such consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Eighteen. The
provisions of this Section 1810 shall similarly apply to any successive
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
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SECTION 1811. CERTAIN TENDER OR EXCHANGE OFFERS FOR EXCHANGE
SECURITIES.
In the event that a tender offer or exchange offer for the Exchange
Securities (including any security included within such term) is commenced by
any Person (including the issuer of such security), the Securities of the
applicable series may provide that the Company shall have the right to redeem,
in accordance with this Section 1811, all or any part of such Securities so
long as any notice of redemption shall be mailed not later than five days after
the date of commencement of such tender or exchange offer as determined by the
Company and such tender or exchange offer shall not have been terminated by the
date that such notice is mailed at the Redemption Price then in effect. In the
event notice of redemption is given in accordance with the preceding sentence,
the Company shall thereafter have the right to instruct the Escrow Agent to
tender the Exchange Securities pursuant to such tender or exchange offer,
provided the number of Exchange Securities so tendered does not include the
number of such Exchange Securities which would be deliverable upon exchange of
the aggregate principal amount of the outstanding Securities of such series
after giving effect to such redemption in accordance with this Section 1811.
In addition to the information called for by Section 1104, any notice of
redemption given pursuant to this Section 1811 shall state whether or not the
Company by the date of such notice has decided to cause Exchange Securities
held in escrow to be tendered pursuant to such tender or exchange offer and, if
tendered, that such Exchange Securities may be sold, to the extent purchased,
to the offeror in accordance with such tender or exchange offer except to the
extent that the Holders of Securities called for redemption duly surrender
their Securities to the Escrow Agent in exchange for Exchange Securities by not
later than the close of business on the last Business Day preceding the
fifteenth day (which date shall be specified) after the date such notice is
mailed or to the extent that the Company otherwise determines to withdraw the
shares so tendered. The Company shall cause to be withdrawn from the tender or
exchange offer, or otherwise to be delivered to the Escrow Agent, a number of
Exchange Securities at least equal to the number of Exchange Securities
deliverable in exchange for Securities which are called for redemption pursuant
to this Section 1811 and are duly surrendered for exchange for Exchange
Securities by not later than the close of business on such last Business Day
preceding the fifteenth day in order to permit such Securities so to be
exchanged. The proceeds of the sale of Exchange Securities sold pursuant to
the tender or exchange offer and any shares tendered which are returned to the
Company or the Escrow Agent following the expiration or termination of such
tender or exchange offer, or which are withdrawn, which are not deliverable in
exchange for Securities duly surrendered for Exchange Securities by the close
of business on such fifteenth day shall be the property of the Company and not
subject to the Escrow Agreement.
SECTION 1812. OBLIGATIONS OF TRUSTEE AND ESCROW AGENT; COMPANY
DETERMINATION FINAL.
Subject to the provisions of Section 601, neither the Trustee nor the
Escrow Agent shall at any time be under any duty or responsibility to any
Holder of Securities to determine whether any facts exist which may require any
adjustment of the Exchange Rate, or with respect to the nature or extent of any
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<PAGE> 111
such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor the Escrow Agent shall be accountable with respect to
the validity or value (or the kind or amount) of any Exchange Securities, or of
any securities or property, which may at any time be issued or delivered upon
the exchange of any Security; and neither the Trustee nor the Escrow Agent
makes any representation with respect thereto. Neither the Trustee nor the
Escrow Agent shall be responsible for any failure of the Company to transfer or
deliver any Exchange Securities or stock certificates or other securities or
property to the Escrow Agent as provided herein or, subject to the provisions
of Section 601 and the express obligations assumed by the Escrow Agent under
the Escrow Agreement, to comply with any of the covenants of the Company
contained in this Article Eighteen. Any determination that the Company or the
Board of Directors must make pursuant to this Article Eighteen is conclusive,
absent manifest error.
SECTION 1813. TAX ADJUSTMENTS OF EXCHANGE RATE.
If an event shall occur which causes the Exchange Rate to be subject
to adjustment pursuant to Section 1804 hereof, or a merger, consolidation, sale
or transfer of assets shall occur requiring a supplemental indenture under
Section 1810 hereof, and if, within 10 days after the effective date of such
transaction, the Company shall furnish the Escrow Agent with an Opinion of
Counsel to the effect that such transaction is taxable to the Company or the
Escrow Agent and an Officers' Certificate as to the amount of Federal, state
and local tax payable by the Company and the Escrow Agent as a result of such
transaction (computed as provided in Section 1815), the Escrow Agent shall pay
to, or to the order of, the Company, in the case of taxes payable by the
Company, or itself, in the case of taxes payable by it, the cash held by it and
apportioned or to be apportioned to the Exchange Securities for which
outstanding Securities are exchangeable, up to the amount of such taxes. In
the event that the cash held by the Escrow Agent and so apportioned or to be
apportioned is insufficient to pay to the Company or the Escrow Agent the
amount of such taxes, the Escrow Agent shall, as soon as reasonably practicable
and to the extent legally permissible, sell in accordance with written
instructions received from the Company such number of Exchange Securities
(including any securities included within the meaning of that term as shall be
specified in such written instructions) as may be necessary to pay, from the
proceeds thereof after payment of any taxes by the Company and the Escrow Agent
on such sale (which shall be similarly evidenced by an Opinion of Counsel and
Officers' Certificate), the amount of any such insufficiency. The Escrow Agent
shall notify the Company and the Trustee of any such sale and the number of
shares sold. Following payment of all necessary amounts to the Company and to
the Escrow Agent, the Exchange Rate and the cash apportioned to the Exchange
Securities held by the Escrow Agent shall be proportionally adjusted so that
the Exchange Securities and the cash apportioned thereto shall be apportioned
equally to the Securities of the applicable series outstanding as of
immediately after the close of business on the record date or the effective
date for the transaction to which this Section 1813 applies (as shall be
specified in Section 1804 or 1810, whichever is applicable). Any Holder
surrendering any Securities for exchange after such record date, or such
effective date, as the case may be, shall be entitled to receive Exchange
Securities and cash apportioned thereto as so adjusted pursuant to this
Section. If this Section 1813 shall apply to a transaction and the sale by the
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<PAGE> 112
Escrow Agent of the consideration receivable therein shall not be legally
permissible and the amount of cash apportioned to the Exchange Securities shall
not be sufficient to pay all taxes payable by the Company and the Escrow Agent
which arise from such transaction (computed as provided in Section 1815), the
Company may direct the Escrow Agent to segregate for the benefit of the Company
or the Escrow Agent (as the case may be) or deliver to the Company or to the
Escrow Agent (as the case may be) an amount of Exchange Securities (including
any securities included therein) theretofore held by the Escrow Agent for
exchange having a Market Price, as determined by an Officers' Certificate,
equal to the unsatisfied portion of the tax payable by the Company or the
Escrow Agent (as the case may be) with respect to such transaction including
any tax payable upon the delivery or sale thereof in order to satisfy the
aforementioned tax, and such Exchange Securities shall thereafter be solely for
the account of the Company or the Escrow Agent (as the case may be) and Holders
of Securities shall have no rights thereto.
In the event that an Opinion of Counsel given pursuant to this
Indenture concludes that whether the transaction is taxable to the Company or
the Escrow Agent is uncertain under the then state of the law or facts or both,
the Company shall have the option of requiring the Escrow Agent to segregate
the amount of funds that would be payable (or other property in lieu thereof),
pursuant to an Officers' Certificate, if such taxes were deemed payable,
together with the amount estimated in good faith to be the reasonable costs and
expenses (including attorneys' fees) of obtaining a determination as set forth
below. The Holders of Securities shall have no rights to such funds or other
property, which shall be held by the Escrow Agent for the Company (or for the
Escrow Agent, as the case may be) and the Exchange Securities and cash
apportioned thereto deliverable upon exchange of Securities pursuant to this
Article Eighteen shall be reapportioned as though such segregated amounts had
been paid to the Company or the Escrow Agent for such taxes, and any Holder
surrendering any Securities for exchange after the record or effective date of
the applicable transaction giving rise to an adjustment pursuant to this
Section 1813 shall be entitled to receive only such Exchange Securities and
cash. The Company shall thereupon in good faith seek an appropriate
determination from the appropriate agencies and, if judged necessary by the
Company in good faith, from courts, as to whether the transaction is taxable.
If an appropriate determination is made that such transaction is so taxable
then the Escrow Agent shall immediately pay the funds or deliver the property
so segregated to the Company (or, if taxes are payable by the Escrow Agent,
shall retain such funds or property for itself), and if an appropriate
determination is made that such transaction is not taxable or an amount of tax
is payable which is less than the amount of funds or property so segregated,
then the Escrow Agent, after paying the Company (or itself, as the case may be)
out of funds or property the reasonable expenses and costs (including
attorneys' fees) of obtaining such determination (and any taxes so payable),
shall apportion such remaining funds or other property which had been so
segregated among the Exchange Securities and cash apportioned thereto as of
immediately after the close of business on the record date or the effective
date of such transaction giving rise to an adjustment pursuant to Section 1804
or 1810 hereof, whichever is applicable. If any Security has been exchanged on
or after such record date or such effective date, as the case may be, and
before a determination is made that no taxes are payable or an amount of tax is
payable which is less than the amount of funds or property so segregated, the
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<PAGE> 113
Escrow Agent, to the extent not previously delivered, shall deliver such
Exchange Securities and cash and other property apportioned thereto as
reapportioned following such determination, to the person to which and in the
manner in which the other proceeds of the exchange of such Securities were
delivered.
SECTION 1814. CASH EQUIVALENT.
Notwithstanding any other provision in this Article Eighteen, in lieu
of delivering certificates representing Exchange Securities in exchange for
Securities surrendered in accordance with Section 1802, the Escrow Agent shall,
if so directed by the Company, pay to the Holder surrendering such Securities
an amount in cash equal to the value of Exchange Securities for which such
Securities are exchangeable (based on the Market Price on the date of receipt
by the Escrow Agent of the notice of exchange delivered by such Holder pursuant
to Section 1802), plus any cash and other property theretofore apportioned to
such Exchange Securities in accordance with Section 1805. Prior to so
directing the Escrow Agent to make any such cash payment, the Company shall
deposit with the Escrow Agent the cash so payable.
SECTION 1815. COMPUTATION OF TAXES PAYABLE.
If there shall be any distribution or grant of money, securities,
other property rights, options or warrants on or with respect to Exchange
Securities held by the Escrow Agent under the Escrow Agreement, or the sale
thereof by the Escrow Agent, as provided in Section 1805(3), or any transaction
referred to in Section 1813, and such distribution, grant, sale or transaction
is or may be taxable to the Company or the Escrow Agent (or would be taxable if
the Company or the Escrow Agent, as the case may be, then had any income tax
liability), the amount of taxes payable, or estimated to be payable, as a
result of such distribution, grant, sale or transaction shall be deemed, for
purposes of Section 1805(3) and 1813, to be the higher of (1) the actual amount
payable, or estimated to be payable, as a result thereof and (2) the amount
which would be payable, or estimated to be payable, as a result thereof if the
income from such distribution, grant, sale or transaction, net of expenses
thereof, were the sole income of the Company or the Escrow Agent, as the case
may be, and the Company or the Escrow Agent, as the case may be, had no
deductions, expenses, loss carryforwards, or credits, and was not entitled to
any refunds, for the period.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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<PAGE> 114
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DIGITAL EQUIPMENT CORPORATION
Attest: By:_______________________________
Name:
Title:
____________________________
BANKERS TRUST COMPANY, Trustee
Attest: By: ______________________________
Name:
Title:
_____________________________
104
<PAGE> 115
EXHIBIT A
Form of Security
----------------
FORM OF FACE OF SECURITY
[If the Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ___% OF ITS PRINCIPAL
AMOUNT, THE ISSUE DATE IS _____________, 19__ [AND] THE YIELD TO MATURITY IS
___% [, THE METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
APPLICABLE TO THE SHORT ACCRUAL PERIOD OF ___________, 19__ TO _________, 19__,
IS ___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
DIGITAL EQUIPMENT CORPORATION
No._______ $________________
DIGITAL EQUIPMENT CORPORATION, a corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts (herein called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________________________________________, or registered assigns, the
principal sum of ____________________________________________ Dollars on
_________________________________.
[IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- and
to pay interest thereon from _____________, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on __________ and _________ _ in each year, commencing
____________, at the rate of ___% per annum, until the principal hereof is paid
or made available for payment and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ___% per annum on any
overdue principal and premium and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ___________ or ____________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of
A-1
<PAGE> 116
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.]
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any, on) [IF APPLICABLE,
INSERT -- and interest on] this Security will be made at the office or agency
of the Company maintained for that purpose in _________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporation seal.
DATED: DIGITAL EQUIPMENT CORPORATION
By:___________________________________
ATTEST:
_________________________________
A-2
<PAGE> 117
FORM OF REVERSE OF SECURITY
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 January 21, 1994 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [IF APPLICABLE, INSERT -- limited in aggregate
principal amount to $___________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [IF APPLICABLE, INSERT
- -- (1) on _________ in any year commencing with the year _______ and ending
with the year _______ through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)] at any time
[IF APPLICABLE, INSERT -- on or after ___________, 19__], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if
applicable, insert -- on or before ______________, ___%, and if redeemed]
during the 12-month period beginning ___________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments the Stated Maturity of which is
on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
A-3
<PAGE> 118
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _______ in any
year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [IF
APPLICABLE, INSERT -- on or after ______________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the
12-month period beginning __ ______ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for Price For Redemption
Redemption Through Otherwise Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- -------------------- -----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year _____ and
ending with the year _____ of [not less than] $_________ [("mandatory sinking
fund") and not more than $_____ ___] aggregate principal amount of Securities
of this series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made -- in the inverse order in which they become due.]]
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
A-4
<PAGE> 119
[IF APPLICABLE, INSERT -- Any Securities called for redemption, unless
surrendered for conversion before the close of business on the Business Day
prior to the Redemption Date, may be deemed to be purchased from the Holders of
such Securities at an amount not less than the Redemption Price, together with
accrued interest, if any, to the Redemption Date, by one or more investment
bankers or other purchasers who may agree with the Company to purchase such
Securities from the Holders, to convert them into Common Stock of the Company
and to make payment for such Securities to the Trustee in trust for such
Holders.]
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Securities may be paid. The Indenture does not limit
the present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Security holder by accepting a Security agrees, to
such subordination and authorizes the Trustee to give it effect and appoints
the Trustee as attorney-in-fact for such purpose.
[IF APPLICABLE, INSERT -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in
respect of this Security or such portion hereof until and including, but
(unless the Company defaults in making the payment due upon redemption) not
after, the close of business on the Business Day immediately preceding the
Redemption Date, to convert this Security (or any portion of the principal
amount hereof which is $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100 of a share) of
Common Stock of the Company at a conversion price equal to $______ aggregate
principal amount of Securities for each share of Common Stock (or at the
current adjusted Conversion Price if an adjustment has been made as provided in
the Indenture) by surrender of this Security in the manner set forth in the
Indenture. The Company's delivery to the Holder of the fixed number of shares
of Common Stock of the Company (and any cash in lieu of a fractional share of
such Common Stock) into which the Security is convertible shall be deemed to
satisfy the Company's obligation to pay the principal amount of the Security
and all accrued interest and original issue discount that has not previously
been paid. The Common Stock of the Company so delivered shall be treated as
issued first in payment of accrued interest and original issue discount and
then in payment of principal. Thus, accrued interest and original issue
discount shall be treated as paid rather than cancelled, extinguished or
forfeited. The Conversion Price is subject to adjustment as provided in the
Indenture. In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party or the transfer or
lease of its properties and assets substantially as an entirety, the Indenture
shall be amended, without the consent of any Holders of Securities, as set
forth in, and in accordance with, the provisions of the Indenture. All of the
terms and conditions relating to any conversion of this Security shall be as
set forth in the Indenture.]
[IF APPLICABLE, INSERT -- Subject to the provisions of the Indenture, at
the option of the holder hereof, this Security (or any portion hereof which is
a multiple of $1,000) may be exchanged for ______ shares of ________ of
_________ (the "Exchange Securities")
A-5
<PAGE> 120
(calculated to the nearest ____ of a share) for each $1,000 principal amount
hereof (and cash and other property in certain events), subject to such
adjustments, if any, to the Exchange Rate and the securities or other property
deliverable upon exchange hereof as may be required by the Indenture, upon
delivery of this Security to the Company at the office or agency maintained by
the Company for such purpose, accompanied by instruments of transfer, in form
satisfactory to the Company, duly executed by the Holder, and by written notice
that the Holder elects so to exchange this Security (or any portion hereof
which is a multiple of $1,000). The right of exchange shall terminate on the
close of business on__________, or, if this Security shall be called for
redemption on the close of business on the Business Day next preceding the
Redemption Date (unless in the case of any such redemption the Company shall
default in the payment due upon the redemption hereof). Except as provided in
this paragraph or as otherwise expressly provided in the Indenture, no payment
or adjustment shall be made on account of interest accrued on any Security (or
portion thereof) so exchanged or on account of any dividends on the Exchange
Securities delivered upon such exchange. No fractional Exchange Securities
shall be delivered upon exchange hereof, but the Company shall pay a cash
adjustment in lieu thereof.]
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of this Security and (b) certain other obligations, in each
case upon compliance by the Company with certain conditions set forth therein,
which provisions apply to this Security.
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --If
an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [-- INSERT FORMULA FOR DETERMINING
THE AMOUNT]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the
A-6
<PAGE> 121
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 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.
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.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security 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 premium,
if any, 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 past, present or future
shareholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, 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 issue hereof, expressly waived
and released.
A-7
<PAGE> 122
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-8
<PAGE> 123
FORM OF CONVERSION NOTICE
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion hereof (which is $1,000 or an
integral multiple thereof) below designated, into shares of Common Stock of
Digital Equipment Corporation in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for any
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered Holder hereof unless a
different name has been indicated below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Dated:
Principal Amount of this Security
to be Converted
$_______________
____________________________________
(Signature)
If shares of Common Stock are to be issued and
registered otherwise than to the registered Holder
named above, please print or typewrite name and
address, including zip code, and social security
or other taxpayer identification number.
________________________________________
________________________________________
________________________________________
A-9
<PAGE> 124
FORM OF NOTICE OF ELECTION TO EXCHANGE
The undersigned owner of this Security hereby irrevocably exercises the
option to exchange this Security, or portion hereof below designated, for
Exchange Securities or securities or other property or cash in accordance with
the terms of the Indenture referred to in this Security and directs that the
Exchange Securities, other securities, other property or cash deliverable upon
the exchange, together, with any check in payment for fractional Exchange
Securities and any Securities representing any unexchanged principal amount
hereof, be issued and delivered to the registered Holder hereof unless a
different name has been indicated below. If the Exchange Securities or other
securities are to be delivered registered in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Dated:
______________________________
(Signature)
Principal Amount of this Security
to be Exchanged
$_______________
Fill in for registration of Exchange Securities or other securities if to be
delivered, and of Securities if to be issued, otherwise then to the registered
Holder.
_______________________ ______________________________
(Name) (Social Security or Other Taxpayer
_______________________ Identifying Number)
(Address)
________________________
(Please print name and
address, including zip code
number)
A-10
<PAGE> 1
EXHIBIT 4.3
_________
Examiner
The Commonwealth of Massachusetts
Office of the Massachusetts Secretary of State
Michael J. Connolly, Secretary
One Ashburton Place, Boston, Massachusetts 02108
ARTICLES OF AMENDMENT FEDERAL IDENTIFICATION
General Laws, Chapter 156B, Section 72 No. 04-2226590f
We, Robert B. Palmer, President and Gail S. Mann, Esq., Clerk of
Digital Equipment Corporation
(EXACT Name of Corporation)
located at: 146 Main Street, Maynard, MA 01754
(MASSACHUSETTS Address of Corporation)
do hereby certify that these ARTICLES OF AMENDMENT affecting
Articles NUMBERED:
3 and 4
(Number those articles 1,2,3,4,5 and/or 6 being amended hereby)
________
Name
Approved
of the Restated Articles of Organization were duly adopted at a
meeting held on November 4, 1993, by vote of:
93,509,891 shares of Common Stock out of 135,009,330 shares outstanding,
type, class & series, (if any)
shares of Common Stock out of shares outstanding,
type, class & series, (if any)
shares of Common Stock out of shares outstanding,
type, class & series, (if any)
being at least two-thirds of each type, class or series outstanding and
entitled to vote thereon and of each type, class or series of stock whose
rights are adversely affected thereby:
1 For amendments adopted pursuant to Chapter 156B, Section 70.
2 For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any Amendment or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left-hand margin of at least 1 inch for binding. Additions to
more than one Amendment may be continued on a single sheet so long as each
Amendment requiring each such addition is clearly indicated.
<PAGE> 2
To CHANGE the number of shares and the par value (if any) of any type,
class or series of stock which the corporation is authorized to issue, fill in
the following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
COMMON: None COMMON: 450,000,000 $1.00
PREFERRED: None PREFERRED: None
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
COMMON: None COMMON: 450,000,000 $1.00
PREFERRED: None PREFERRED: 25,000,000 $1.00
<PAGE> 3
ARTICLE 4 is hereby amended and restated in its entirety as set forth
in Exhibit A attached hereto.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of The General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
EFFECTIVE DATE: upon filing
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto
signed our names this 4th day of November, in the year 1993.
/s/ Robert B. Palmer
________________________ President
Robert B. Palmer
/s/ Gail S. Mann
________________________ Clerk
Gail S. Mann, Esq.
<PAGE> 4
EXHIBIT A
The following is a statement of the designations, preferences, voting
powers, qualifications, and special or relative rights or privileges in respect
of each class of authorized capital stock of the Corporation.
A. COMMON STOCK
1. General. There shall be one class of common stock of the
Corporation (the "Common Stock"). The voting, dividend and liquidation rights
of the holders of the Common Stock are subject to and qualified by the rights
of the holders of outstanding shares of Preferred Stock of any class or series
as may be designated herein or by the Board of Directors of the Corporation in
accordance with the provisions hereof.
2. Voting. The holders of the Common Stock are entitled to one vote
for each share held at all meetings of stockholders (and written actions in
lieu of meetings). There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential and participation rights of any
then outstanding Preferred Stock.
B. PREFERRED STOCK
The preferred stock (the "Preferred Stock") may be issued in one or
more series at such time or times and for such consideration or considerations
as the Board of Directors of the Corporation may determine. Each series of the
Preferred Stock shall be designated so as to distinguish the shares thereof
from the shares of all other series and classes of the stock of the
Corporation. Except as to the relative preferences, powers, qualifications,
rights and privileges referred to below in this Part B, in respect of any or
all of which there may be variations between different series, all shares of
the Preferred Stock shall be identical. Different series of the Preferred
Stock shall not be construed to constitute different classes of shares for the
purpose of voting by classes.
<PAGE> 5
Subject to limitations prescribed by law or by these Restated Articles
of Organization, as amended, the Board of Directors is expressly authorized to
provide by adopting a vote or votes, a certificate of which shall be filed in
accordance with the Business Corporation Law of The Commonwealth of
Massachusetts, for the issuance of the Preferred Stock in one or more series,
each such series to have such number of shares, designations, preferences,
voting powers, qualifications, and special or relative rights or privileges as
shall be stated in the vote or votes establishing such series. The authority
of the Board of Directors with respect to each such series shall include
(without limitation of the foregoing) the right to determine and fix:
(1) the distinguishing designation of such series and the number
<PAGE> 6
of shares to constitute such series;
(2) the rate at which dividends, if any, on the shares of such series
shall be declared and paid, or set aside for payment, whether dividends, at the
rate so determined shall be cumulative, noncumulative or partially cumulative
and whether the shares of such series shall be entitled to any participating or
other dividends in addition to dividends at the rate so determined, and if so
on what terms;
(3) the right, if any, of the Corporation to redeem shares of such
series and, if redeemable, the price, terms and manner of such redemption;
(4) the special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of such series shall be entitled
to receive upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(5) the terms and conditions, if any, upon which shares of such series
shall be convertible into, or exchangeable for, shares of any other class or
classes or any other series of the same or any other class or classes of stock
of the Corporation, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
(6) the obligation, if any, of the Corporation to retire or purchase
shares of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) the voting rights, if any, of shares of such series; provided,
however, that the holders of shares of Preferred Stock will not be entitled to
more than one vote per share when voting as a class with the holders of shares
of Common Stock;
(8) the limitations, if any, on the issuance of additional shares of
such series or any shares of any other series of the Preferred Stock; and
(9) such other preferences, powers, qualifications, and special or
relative rights and privileges as shall be stated in the vote or votes
providing for the establishment of such series of Preferred Stock.
<PAGE> 7
==============================================================================
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
==============================================================================
I hereby approve the within articles of amendment and, the filing fee
in the amount of $ having been paid, said articles are deemed to have
been filed with me this day of 19 .
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT
TO BE SENT TO:
Gail S. Mann, Esq.
___________________________
Digital Equipment Corporation
111 Powdermill Road
Maynard, MA 01754-1499
Telephone: (508) 493-2206
<PAGE> 1
Exhibit 4.6
================================================================================
DIGITAL EQUIPMENT CORPORATION
CITIBANK, N.A., as Depository
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN.
Deposit Agreement
relating to
Series ______ Preferred Stock of
Digital Equipment Corporation
Dated as of ______________, 1994
================================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
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<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
-----------
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Certificate of Designation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Depositary's Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Record Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Form of Receipts, Deposit of Preferred Stock, Execution and
-----------------------------------------------------------
Delivery, Transfer, Surrender and Redemption of Receipts
--------------------------------------------------------
SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.03. Redemption of Preferred 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 Preferred 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. Prohibition Against Preferred Stock, Depositary Shares or Receipt
Lending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Certain Obligations of Holders of Receipts and the Company
----------------------------------------------------------
SECTION 3.01. Filing Proofs, Certificates, and Other Information . . . . . . . . . . . . . 7
SECTION 3.02. Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . 8
</TABLE>
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SECTION 3.03. Representation and Warranty as to Preferred Stock . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.04. Covenant as to Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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 Preferred Stock and Reclassifications,
Recapitalizations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.07. Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.09. Tax and Regulatory Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . 13
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 . . . . . . 14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary . . . . . . . 15
SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.07. Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.02. Holders of Receipts are Parties; Exclusive Benefit of Parties . . . . . . . . . 18
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.05. Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.07. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.09. Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A: Form of Depositary Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
(iii)
<PAGE> 5
DEPOSIT AGREEMENT dated as of ________, 1994 among
DIGITAL EQUIPMENT CORPORATION, a Massachusetts corporation (the
"Company"), CITIBANK, N.A., a national banking association, as
depositary (the "Depositary") and the holders from time to time of
the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Agreement, for the deposit of Series ___________ Preferred Stock, $1.00 par
value, [$___ liquidation preference] (the "Preferred Stock"), of the Company
with the Depositary for the purposes set forth in this Agreement and for the
issuance hereunder of Receipts (as defined in Article I) evidencing Depositary
Shares (as defined in Article I) representing an interest in the Preferred
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
The following definitions shall for all purposes, unless otherwise
indicated or the context otherwise requires, apply to the respective terms used
in this Agreement:
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the State of New
York or the Commonwealth of Massachusetts are authorized or obligated by law or
executive order to close.
"Certificate of Designation" means the Company's Certificate of Vote
of Directors Establishing a Series of a Class of Stock, setting forth the
voting powers, designation, preferences and other rights of the Preferred Stock
dated ______________, as filed with the Secretary of State of the Commonwealth
of Massachusetts pursuant to M.G.L. Chapter 156B, Section 26.
"Depositary Shares" shall mean Depositary Shares of the Company, each
representing [specify fraction] of a share of Preferred Stock and evidenced by
a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
<PAGE> 6
"Depositary's Office" shall mean the office of the Depositary in the
Borough of Manhattan, New York, New York, 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 that shall be
appointed to register ownership and transfers of Receipts as herein provided.
ARTICLE II
Form of Receipts, Deposit of Preferred 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 hereto, 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 Preferred Stock, as the case may
be, delivered for deposit 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 second last paragraph of Section 2.02, without
charge to the holder. Upon surrender for 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 to the holder
thereof. Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Agreement, and with respect to the
Preferred Stock deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Company and authenticated
by the Depositary by the manual signature of a duly authorized officer of the
Depositary; PROVIDED, HOWEVER, 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
2
<PAGE> 7
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 or, if a Registrar (other than the Depositary) shall
have been appointed, the Registrar shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
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 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 Preferred 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 that 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 Agreement and for all other
purposes.
SECTION 2.02. DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this
Agreement, the Company or any holder of Preferred Stock may from time to time
deposit shares of Preferred Stock under this Agreement by delivery to the
Depositary of (i) a certificate or certificates for the shares of Preferred
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 (ii) all certifications as
may be required by the Depositary in accordance with the provisions of this
Agreement, and (iii) 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 shares of Preferred
Stock.
Upon receipt by the Depositary of a certificate or certificates for
the shares of Preferred Stock deposited in accordance with the provisions of
this Section 2.02, together with the other documents required, and upon
registration of such shares of Preferred Stock on the books of the Company in
the name of the Depositary or its nominee, the Depositary,
3
<PAGE> 8
subject to the terms and conditions of this 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 2.02, a Receipt or Receipts for the number of whole Depositary Shares
representing such shares of Preferred Stock and registered in such name or names
as may be requested by such person or persons.
Certificates in the name of the Depositary for the deposited shares of
Preferred Stock shall be held by the Depositary at the Depositary's Office or
at such other place or places as the Depositary shall determine.
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. In each case, delivery will be made only upon
payment by such person to the Depositary of all taxes and other governmental
charges and any fees payable in connection with such deposit and the transfer
of the deposited Preferred Stock.
The Company shall deliver to the Depositary from time to time such
quantities of receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Agreement.
SECTION 2.03. REDEMPTION OF PREFERRED STOCK. Whenever the Company
shall elect to redeem shares of Preferred Stock deposited hereunder in
accordance with the provisions of the Certificate of Designation, the Company
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 35 nor more than 60 days notice of (a) the date of
such proposed redemption of the Preferred Stock, which notice shall be
accompanied by a certificate from the Company stating that such redemption of
the Preferred Stock is in accordance with the
provisions of the Certificate of Designation and (b) the number of such shares
of Preferred Stock held by the Depositary to be redeemed as hereinafter
provided. On the date of such redemption, provided that the Company shall then
have paid in full to the Depositary the redemption price of any deposited
shares of Preferred Stock to be redeemed, plus any accrued and unpaid dividends
thereon in accordance with the Certificate of Designation, the Depositary shall
redeem the number of Depositary Shares representing such shares of Preferred
Stock. The Depositary shall mail notice of such redemption of the Preferred
Stock and the proposed simultaneous redemption of the number of Depositary
Shares representing the deposited shares of Preferred Stock to be redeemed,
first-class postage prepaid, as promptly as practicable upon receipt of such
notice from the Company and not less than 30 and not more than 60 days prior to
the date fixed for redemption of such Preferred 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 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
4
<PAGE> 9
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 shares of Preferred 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 by lot or pro rata as may be determined by the Depositary to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the
deposited shares of Preferred 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 deposited shares of Preferred 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
[specify fraction] of the redemption price per share paid in respect of the
redeemed deposited shares of Preferred 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 Preferred Stock to be so redeemed and have not theretofore been
paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption, together with the redemption payment.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this 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 or endorsement
together with evidence of the payment of any transfer taxes as may be required
by law. 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 PREFERRED 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 Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts in the
5
<PAGE> 10
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 whole number of
deposited shares of Preferred Stock may withdraw such shares of Preferred 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 whole
number of shares of Preferred Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such shares of Preferred Stock will not thereafter be entitled to
deposit such shares of Preferred 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 deposited Depositary Shares representing the number of shares of
Preferred Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of shares of Preferred Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 2.02) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the shares of Preferred 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 shares of Preferred 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
the Preferred 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 Preferred Stock be appropriately endorsed or accompanied by a
properly executed instrument of transfer or endorsement.
Delivery of the shares of Preferred 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 (including any tax or charge with respect to
the Preferred Stock being deposited or withdrawn; provided, that the Company
shall pay any documentary,
6
<PAGE> 11
stamp or similar issue or transfer tax due on the issue of Common Stock upon
conversion; and provided further that the holder of such Receipt shall pay the
amount of any tax which is due if the shares are to be issued in a name
other than the name of such holder), 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 Depositary or the Company may establish
consistent with the provisions of this Agreement.
The deposit of shares of Preferred Stock may be refused, the delivery
of Receipts against Preferred 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 holders of Preferred Shares of the Company is closed or (ii) if
any such action is deemed necessary or advisable by the Depositary, any agent
of the Depositary 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 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
reasonable indemnification satisfactory to it and payment of any expenses
(including fees, charges and expenses of the Depositary) in connection with
such execution and delivery.
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 Company is authorized to destroy all Receipts so cancelled.
SECTION 2.09. PROHIBITION AGAINST PREFERRED STOCK, DEPOSITARY
SHARES OR RECEIPT LENDING. The Depositary shall not lend any Preferred Stock,
Depositary Shares or Receipts at any time held hereunder.
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 shares of
7
<PAGE> 12
Preferred 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 Sections 2.06 and 5.07.
Registration of transfer of any Receipt or any withdrawal of shares of
Preferred 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 shares of Preferred
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. REPRESENTATION AND WARRANTY AS TO PREFERRED STOCK.
In the case of the initial deposit of the Preferred Stock and payment therefor,
the Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Stock under this Agreement, shall be deemed thereby to
represent and warrant that the shares of Preferred Stock and each certificate
therefor are validly issued, fully paid and nonassessable and that the person
making such deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of any shares of Preferred Stock and the
issuance of Receipts.
SECTION 3.04. COVENANT AS TO RECEIPTS. The Company will take any
necessary action to ensure that the Receipts, when issued, will represent legal
and valid interests in the Preferred Stock. Such covenant shall survive the
deposit of the Preferred Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. CASH DISTRIBUTIONS. The Company hereby authorizes
the Depositary to establish an account which shall be named the "_________
Account" (Account No. _______) for the deposit and safekeeping of any
dividends, cash or any other distributions received by the Depositary in
connection with the Preferred Stock. The ________ Account shall be [a trust
account] [an interest bearing account] with [exclusive] right of withdrawal by
[__________]. Whenever the Depositary shall receive any cash dividend or other
cash distribution on deposited shares of Preferred 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
8
<PAGE> 13
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 shall withhold from any cash dividend or other cash distribution in
respect of the Preferred Stock an amount on account of taxes or as otherwise
required by law or court process, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced accordingly. In
the event that the calculation of any such cash dividend or other such cash
distribution to be paid to any Record Holder on the aggregate number of Receipts
held by such holder results in an amount which is a fraction of a cent, the
amount the Depositary shall distribute to such Record Holder shall be rounded to
the next highest whole cent; and upon request of the Depositary, the Company
shall pay the additional amount to the Depositary for distribution.
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 deposited shares of Preferred
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 or as otherwise required by law or court process) the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Company shall 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 Depositary 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, as amended (the "Act") 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 the shares of Preferred Stock are 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 issuance 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
issuance or offer of any such rights, preferences or
9
<PAGE> 14
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 issuance 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 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 and 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 Act or do not need to be
registered.
If registration under the Act 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 will file promptly a registration statement
pursuant to the 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 the
Company delivers to the Depositary an opinion of counsel stating either that (i)
such a registration statement shall have become effective, or (ii) the offering
and sale of such securities to such holders are exempt from registration under
the provisions of the 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 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
the Preferred Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of shares of Preferred Stock are entitled to vote or
of which holders of shares of Preferred 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
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<PAGE> 15
Company with respect to the Preferred 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.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of shares of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the Record Holders
of Receipts a notice which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting and (ii)
a statement that the holders of Receipts may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the number of shares of Preferred 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 (iii) 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 whole number of shares of Preferred
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 shares of Preferred Stock or cause such
shares of Preferred 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 shares of
Preferred Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the number of shares of Preferred Stock represented
by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED PREFERRED STOCK AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification of
the Preferred 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 Preferred Stock, and (y) the ratio of the redemption
price per Depositary Share to the redemption price per share of Preferred
Stock, in each case as may be necessary fully to reflect the effects of such
changes in par value or liquidation preference, split-up, combination or other
reclassification of the Preferred 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 deposited shares of Preferred Stock as new
deposited securities so received in exchange for or upon conversion or in
respect of such shares of Preferred Stock. In any such case the
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<PAGE> 16
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 value or liquidation preference, split-up, combination or
other reclassification of the Preferred 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 shares
of Preferred Stock represented thereby only into or for, as the case may be, the
kind and amount of shares of Preferred Stock and other securities and property
and cash into which the Preferred Stock represented by such Receipts might have
been converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office
during normal business hours, 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 Preferred Stock and are
generally available to holders of Preferred 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.
SECTION 4.09. TAX AND REGULATORY COMPLIANCE. The Depositary shall
be responsible for (i) preparation and mailing of all applicable tax forms for
all open and closed accounts and (ii) all applicable foreign and domestic tax
withholding, including without limitation the mailing of W-9 forms to new
holders of Receipts without a certified taxpayer identification number, the
processing of certified W-9 forms, the preparation and filing of state
information returns and the provision of escheatment services.
SECTION 4.10. WITHHOLDING. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes to the holders of Receipts
entitled thereto in proportion to the number of Depositary Shares held by them
respectively.
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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 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 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 during normal business hours shall be open for inspection by
the Record Holders of Receipts to the extent provided by applicable law;
PROVIDED, HOWEVER, 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 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.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the
New York Stock Exchange, the Depositary may, with the approval of the Company,
appoint a Registrar 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, the Depositary
Shares or the Preferred Stock shall be listed on one or more other stock
exchanges, the Depositary will, at the request and expense of the Company,
arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of the Receipts, the Depositary Shares or the
Preferred 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 Restated Articles of Organization, as
amended (including the Certificate of Designation) 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 Agreement provide shall be
done or performed; nor shall the Depositary, any Depositary's Agent, any
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<PAGE> 18
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 Agreement except, in case of any
such exercise or failure to exercise discretion not caused as aforesaid, if
caused by the gross 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 Agreement or any Receipt to
holders of Receipts other than for its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation under this Agreement to appear
in, prosecute or defend any action, suit or other proceeding in respect of
deposited shares of Preferred Stock, the Depositary Shares or the Receipts that
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 advice of legal counsel or written advice of accountants, or
information from any person presenting shares of Preferred Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to be
competent to give such advice or 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.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall notify the Company and thereafter,
absent instructions to the contrary from the Company, shall be entitled to act
on such claims, requests or instructions received from the Company, and shall
be entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken.
Notwithstanding the first paragraph of this Section 5.03, the
Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited shares of Preferred 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 or in accordance with this Agreement. 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
and its affiliates, the Depositary's Agents and any Registrar may
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<PAGE> 19
own, buy, sell, and deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares or become pecuniarily interested
in any transaction in which the Company or its affiliates are interested or
contract with or lend money to or otherwise act as fully and as freely as if it
were not the Depositary or the Depositary's Agent or Registrar hereunder. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent,
acting as the Depositary Agent, shall be deemed to be an "issuer" of the
Receipts under the Federal securities laws or applicable state securities laws,
it being expressly understood and agreed that the Depositary and any
Depositary's Agent are acting only in a ministerial capacity as Depositary for
the Preferred Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Act, the Preferred Stock,
the Depositary Shares or the Receipts (except for its counter-signatures
thereon) or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Agreement. Notwithstanding
any other provision herein or in the Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or sufficiency of
any Preferred Stock at any time deposited with the Depositary hereunder or of
the Depositary Shares, as to the validity or sufficiency of this Agreement, as
to the value of the Depositary Shares or as to any right, title or interest of
the Record Holders of Receipts in and to the Depositary Shares. The Depositary
shall not be accountable for the use or application by the Company of the
Depositary Shares or the Receipts or the proceeds thereof.
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 to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as herein after 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
herein after 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
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<PAGE> 20
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 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 Preferred 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 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 shall deliver to the Depositary and the Depositary shall, in reliance
upon the Company's written instructions, promptly after receipt thereof,
forward to the Record Holders of Receipts all notices and reports and other
communications from the Company (including without limitation financial
statements) which are delivered to the Depositary, and which in the judgment of
the Company are required by law, by the rules of any national securities
exchange upon which the Preferred Stock, the Depositary Shares or the Receipts
are listed or by the Company's Restated Articles of Organization, as amended
(including the Certificate of Designation), to be furnished by the Company to
holders of shares of Preferred Stock. Such transmission will be to the
addresses for Record Holders in the Depositary's books and will be at the
Company's expense and the Company will provide the Depositary with such number
of copies as the Depositary may reasonably request.
SECTION 5.06. INDEMNIFICATION.
The Company shall indemnify the Depositary (including its directors,
officers, employees and agents), any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including fees and expenses of counsel and the costs and expenses of defending
itself) that 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 gross negligence or bad faith 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, the Depositary
Shares or the Preferred Stock pursuant to the
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<PAGE> 21
provisions hereof. This indemnification shall survive the termination of this
Agreement and, as to the Depositary, the appointment of a successor
thereto in any function.
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 charges of
the Depositary in connection with the initial deposit of the Preferred Stock
and the initial issuance of the Depositary Shares, redemption of the Preferred
Stock at the option of the Company and all withdrawals of shares
of the Preferred 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. The Company agrees to pay
all other reasonable and customary 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, including any other reasonable and customary charges and
expenses incurred by the Depositary under the last sentence of the second
paragraph of Section 6.02.
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provisions of this 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 Depositary's
Agent, which shall go into effect not sooner than three months after notice
thereof to the holders of the Receipts) that 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. Any amendment that shall impose any fees,
taxes or charges (other than fees and charges provided for herein or in the
Receipts), or that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding Receipts
until the expiration of 30 days after notice of such amendment shall have been
given to the Record Holders of outstanding Receipts. 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 Agreement as amended thereby.
SECTION 6.02. TERMINATION. This Agreement may be terminated by the
Company or the Depositary only after (a) (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or surrendered pursuant to
Section 2.05 or (ii) there shall have been made a final distribution in respect
of the Preferred 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 and (b) reasonable notice has been given to any remaining holders of
Receipts.
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<PAGE> 22
If any Receipts shall remain outstanding after the date of termination
of this Agreement, the Depositary thereafter shall discontinue the transfer of
Receipts, shall suspend the distribution of dividends to the holders thereof
and shall not give any further notices (other than notice of such termination)
or perform any future acts under this Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Preferred Stock, shall sell rights, preferences or privileges as provided in
this Agreement and shall continue to deliver the Preferred Stock and any money
and other property represented by Receipts upon surrender thereof by the
holders thereof. After the expiration of two years from the date of
termination, the Depositary shall remit to the Company the remaining Preferred
Stock and any money and other property represented by Receipts that have not
therefore been surrendered (including any interest earned on such amounts
during such two year period), along with all registers and records relating
thereto. After such remittance, the Depositary shall be discharged from all
obligations under this Deposit Agreement.
Upon the termination of this 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 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. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this 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 7.02. HOLDERS OF RECEIPTS ARE PARTIES; EXCLUSIVE BENEFIT OF
PARTIES. The holders of Receipts from time to time shall be parties to this
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof. This 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 Agreement or in the Receipts should be or
become invalid, illegal or 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.
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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 111 Powdermill Road,
Maynard, MA 01754-1418, attention of Ilene B. Jacobs, Vice President and
Treasurer (MS02-2/F23), with a copy to Gail S. Mann, Esq., Secretary and Clerk
(MS02-3/F13), 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 (i) by the
Company 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 120 Wall Street, 13th Floor, New York,
New York 10043, Attn: John Reasor; or (ii) by a Record Holder 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 111 Wall Street, 5th Floor, New York, New York 10043, 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 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. The Company
hereby also appoints the Depositary as Registrar and Transfer Agent in respect
of the Receipts and the Depositary hereby accepts such appointments.
SECTION 7.06. GOVERNING LAW. This 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 Commonwealth of
Massachusetts.
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SECTION 7.07. INSPECTION OF AGREEMENT. Copies of this Agreement
shall be filed with the Depositary and shall be open to inspection during
business hours at the Depositary's office by any holder of a Receipt.
SECTION 7.08. HEADINGS. The headings of articles and sections in
this 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 Agreement or the Receipts or have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
SECTION 7.09. BOARD OF DIRECTORS. All references to any actions to
be taken by the Company's Board of Directors shall be deemed to include actions
taken by either the Company's Board of Directors or an authorized committee
thereof.
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<PAGE> 25
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 Receipt issued in accordance with the terms hereof.
DIGITAL EQUIPMENT CORPORATION
By_____________________________________
Attested by
_____________________________
[SEAL]
CITIBANK, N.A., as Depositary
By_____________________________________
Attested by
_____________________________
[SEAL]
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DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES EACH REPRESENTING A [SPECIFY PERCENTAGE]
INTEREST IN A SHARE OF ___________ PREFERRED STOCK, [____%] SERIES ($1.00 PAR
VALUE) OF
DIGITAL EQUIPMENT CORPORATION
(INCORPORATED UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS)
_________ DEPOSITARY SHARES
No.______ Each Depositary Share Represents A ____% Interest In A Share
of __________ Preferred Stock [___%] Series ($1.00 Par Value)
See Reverse For Certain Definitions
1. Citibank, N.A., a national banking association duly organized
and existing under the laws of the United States of America, with an office at
the time of the execution of the Deposit Agreement (as defined below) at 111
Wall Street, 5th Floor, New York, NY 10043, as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of __________________________________ DEPOSITARY SHARES
("Depositary Shares") each Depositary Share representing a [specify percentage]
(as such fraction may from time to time be adjusted in the event of certain
amendments to the Company's Restated Articles of Organization, as amended)
interest in one share of ___________ Preferred Stock [__%] Series, ($1.00 Par
Value) (the "Preferred Stock"), of Digital Equipment Corporation, a corporation
duly organized and existing under the laws of The Commonwealth of Massachusetts
(the "Company"). Subject to the terms of the Deposit Agreement each owner of a
Depositary Share is entitled proportionately through the Depositary to all
rights and preferences of the Preferred Stock relating thereto including
dividends, voting, redemption and liquidation rights contained in the
certificate of vote adopted by the Company's Board of Directors or a duly
authorized committee thereof setting forth the number, terms, powers,
designations, rights, preferences, qualifications, restrictions and limitations
of the Preferred Stock (the "Certificate of Designation"), copies of which are
on file at the Depositary's Corporate Office.
<PAGE> 27
2. The Deposit Agreement. Depositary Receipts (the "Depositary
Receipts" or the "Receipts"), of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement dated as of
____________, 1994 (the "Deposit Agreement"), among the Company, the Depositary
and all holders from time to time of the Receipts. The Deposit Agreement
(copies of which are on file at the Depositary's Corporate Office) sets forth
the rights of holders of the Receipts and the rights and duties of the
Depositary and the Company in respect of the Preferred Stock deposited from
time to time held thereunder. The statements made on the face and the reverse
of this Receipt are summaries of certain provisions of the Deposit Agreement
and are subject to the detailed provisions thereof, to which reference is
hereby made. Unless otherwise expressly herein provided, all defined terms
used herein shall have the meanings ascribed thereto in the Deposit Agreement.
Reference is hereby made to the provisions set forth under the caption
"Terms and Conditions (Continued)" on the reverse hereof. Such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Depositary Receipt shall not be entitled to any benefits under
the Deposit Agreement or be valid or obligatory for any purposes unless this
Depositary Receipt shall have been authenticated manually or, if a Registrar
for the Receipts (other than the Depositary) shall have been appointed, by
facsimile signature of a duly authorized signatory of the Depositary, and, if
authenticated by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a duly authorized
signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
PREFERRED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS
OF THE FOLLOWING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE DEPOSITARY MAKES
NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINESS OR SUFFICIENCY
OF ANY PREFERRED STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY HEREUNDER OR
OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE
OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS TO THE DEPOSITARY
SHARES.
<PAGE> 28
The authorized capital stock of the Company consists of preferred
stock, issued or to be issued in series, and common stock. The shares of each
class and series now authorized to be issued have the preferences, voting
powers, qualifications and special and relative rights set forth in the
Restated Articles of Organization of the Company, as amended. The Company will
furnish to the holder of this certificate upon written request addressed and
mailed to the Company, care of the transfer agent, and without charge, a copy
of the full text of such preferences, powers, qualifications and rights. Dated
Authentication Countersigned
Citibank, N.A.,
Citibank, N.A.,
As Depositary As Registrar
By By
Authorized Signatory Authorized Signatory
[BACK OF CERTIFICATE]
TERMS AND CONDITIONS CONTINUED
3. Redemption of Preferred Stock. Whenever the Company shall
elect to redeem shares of Preferred Stock in accordance with the provisions of
its Restated Articles of Organization, as amended, the Company shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 35 nor more than 60 days notice of (a) the date of such proposed
redemption of the Preferred Stock, which notice shall be accompanied by a
certificate from the Company stating that such redemption of the Preferred
Stock is in accordance with the provisions of the Certificate of Designation
and (b) the number of such shares of Preferred Stock held by the Depositary to
be redeemed as hereinafter provided. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of any deposited shares of Preferred Stock to be redeemed, plus any
accrued and unpaid dividends thereon in accordance with the Certificate of
Designation, the Depositary shall redeem the number of Depositary Shares
representing such shares of Preferred Stock. The Depositary shall mail notice
of such redemption of the Preferred Stock and the proposed simultaneous
redemption of the number of Depositary Shares representing the deposited shares
of Preferred Stock to be redeemed, first-class postage prepaid, as promptly as
practicable upon receipt of such notice from the Company and not less than 30
and not more than 60 days prior to the date fixed for redemption of such
Preferred 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 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 shares of Preferred
Stock represented by the Depositary Shares to be redeemed will cease to
accumulate on such Redemption Date. In case less than all the outstanding
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<PAGE> 29
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Depositary to
be equitable. Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the deposited shares of Preferred 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 deposited shares of Preferred 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 [specify fraction] of the redemption price per share paid in respect of the
redeemed deposited shares of Preferred 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 Preferred Stock to be so redeemed and have not
theretofore been paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption, together with the redemption payment.
4. Transfer, Split-ups, Combinations. This Depositary Receipt is
transferrable on the books of the Depositary upon surrender hereof to the
Depositary, properly endorsed or accompanied by a properly executed instrument
of transfer, and thereupon the Depositary shall execute a new Depositary
Receipt to or upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt representing the same aggregate number of
Depositary Shares as the Receipt or Receipts surrendered.
5. Withdrawal of Preferred Stock. The holder of a Depositary
Receipt or Receipts representing any number of whole shares of Preferred Stock
may withdraw the Preferred Stock represented thereby by surrendering such
Depositary Receipt or Receipts at the Corporate Office or at any other office
that may be designated for the purpose pursuant to Section 2.05 of the Deposit
Agreement. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder,
the number of whole shares of
4
<PAGE> 30
Preferred Stock represented by the Depositary Receipt of Receipts so
surrendered for withdrawal, but holders of such whole shares of Preferred Stock
will not thereafter be entitled to deposit such Preferred Stock hereunder or to
receive Depositary Shares therefor. If a Depositary 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 Preferred Stock to be so withdrawn,
the Depositary shall, at the same time, in addition to such number of whole
shares of Preferred Stock to be so withdrawn, deliver to such holder, or upon
his order, a new Depositary Receipt evidencing such excess number of Depositary
Shares.
6. Suspension of Delivery, Transfer, etc. The transfer or
surrender of this Depositary Receipt may be suspended during any period when
(i) the register of holders of Preferred Stock of the Company is closed or,
(ii) any such action is deemed necessary or advisable by the Depositary, any
agent of the Depositary, 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 the Deposit Agreement.
7. Payment of Taxes or Other Governmental Charges. 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
charges of the Depositary in connection with the initial deposit of the
Preferred Stock, the initial issuance of the Depositary Receipts, and any
redemption of the Preferred Stock at the option of the Company. All other
transfer and other taxes and governmental charges shall be at the expense of
the holders of Depositary Receipts.
8. Amendment. The Form of the Depositary Receipt and any
provisions of the 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 which shall materially and adversely alter the rights of the holders
of the Depositary 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.
9. Charges of Depositary. The Company will pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements and all charges of the Depositary in connection with
the initial Deposit of the Preferred Stock and the initial issuance of the
Depositary Shares and redemption of the Preferred Stock, at the option of the
Company, and all withdrawals of shares of Preferred Stock by owners of
Depositary Shares. All other transfer and other taxes and other governmental
charges shall be at the expense of holders of Depositary Receipts. All other
charges and expenses of the Depositary and any agent of the Depositary will be
paid upon consultation and agreement between the Depositary and the Company.
10. Title to Receipts. The Depositary Receipts (and the
Depositary Shares evidenced thereby) when properly endorsed or accompanied by a
properly endorsed instrument of transfer, are transferrable by delivery with
the same effect as in the case of a negotiable instrument, provided, however,
that the transfer of the Depositary Receipt shall be registered on the books of
the Depositary. The Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to any distributions
of dividends or other
5
<PAGE> 31
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
11. Dividends and Distributions. Whenever the Depositary receives
any cash dividend or other cash distribution on the Preferred Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, make such
distribution to the Depositary Receipt holders as nearly as practicable in
proportion to the number of Depositary Shares held by them; provided, however,
that, in the event that the calculation of any such cash dividend or other such
cash distribution to be paid to any record holder on the aggregate number of
Depositary Receipts held by such holder results in an amount which is a
fraction of a cent, the amount the Depositary shall distribute to such record
holder shall be rounded to the next highest whole cent; and upon request of the
Depositary, the Company shall pay the additional amount to the Depositary for
distribution. Whenever the Depositary shall receive any distribution other
than cash, rights, preferences or privileges upon deposited shares of Preferred
Stock, the Depositary shall distribute to record holders of Depositary Receipts
on the fixed record date such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Depositary Receipts held by such holders, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution.
12. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or shall be made or any distribution
other than cash shall be made pursuant to the Company's Restated Articles of
Organization, as amended, or if rights, preferences or privileges shall anytime
be offered with respect to Preferred Stock, or whenever the Depositary shall
receive notice of any meeting at which holders of Preferred Stock are entitled
to vote or of which holders of Preferred 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
record date fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Depositary Receipts who shall be entitled to
receive such dividend, distribution, right, 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.
13. Voting Rights. Upon receipt of notice of any meeting at which
holders of Preferred Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Depositary Receipts a
notice which shall contain such information as is contained in such notice of
meeting and a statement informing holders of Depositary Receipts that they may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Stock underlying their respective Depositary Shares and
a brief statement as to the manner in which such instructions may be given.
Upon the written request of a holder of a Depositary Receipt on such record
date, the Depositary shall endeavor insofar as practicable to vote or cause to
be voted the amount of Preferred Stock underlying the Depositary Shares
evidenced by such Receipts in accordance with the instructions set forth in
such request. In the absence of specific instructions from
6
<PAGE> 32
the holder of a Depositary Receipt, the Depositary will abstain from voting the
number of shares of the Preferred Stock underlying the Depositary Shares
evidenced by such Receipt.
14. Changes Affecting Deposited Securities. Upon any change in
par or stated value, split-up, combination or any other reclassification of the
Preferred Stock or upon any recapitalization, reorganization, merger,
amalgamation or consolidation of the Company or the sale of all or
substantially all the Company's assets, the Depositary may, in its discretion
with the approval of the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments in (a) the fraction of
an interest in one share of Preferred Stock underlying one Depositary Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Preferred Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up,
combination or any other reclassification of the Preferred Stock or upon any
recapitalization, reorganization, merger, amalgamation or consolidation of the
Company and (ii) treat any securities which shall be received by the Depositary
in exchange for or upon conversion of or in respect of such Preferred Stock as
new deposited securities so received in exchange for or upon conversion or in
respect of the Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Depositary Receipts or may call for the surrender of outstanding Depositary
Receipts to be exchanged for new Depositary Receipts specifically describing
such new deposited securities.
15. Liability and Obligations of the Depositary, the Depositary's
Agents or the Company. Neither the Depositary nor any Depositary's Agent nor
any Transfer Agent or Registrar nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to any holder of any
Depositary Receipt (or proposed transferees of this Depositary Receipt), other
than that each of them agree to use its best judgment and good faith in the
performance of such duties as are expressly set forth in the Depositary
Agreement. Neither the Depositary nor any Depositary's Agent nor any Transfer
Agent or Registrar nor the Company shall incur any liability to any holder of
this Depositary Receipt (or proposed transferees of this Depositary Receipt )
if, by reason of any provision of any present or future law or any regulation
thereunder of the United States of America or 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 Restated Articles
of Organization, as amended, or by reason of any act of God or war or other
circumstance beyond their control, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of the 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 Depositary
Receipt by reason of nonperformance or delay, caused as aforesaid, in its
performance or any act or thing which by the terms of the Deposit Agreement is
provided shall be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit Agreement,
other than for its gross negligence, bad faith or intentional misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar for the
Company shall be under any obligation or appear in, prosecute or defend any
action, suit or other proceeding in respect of the Preferred Stock, the
Depositary Shares
7
<PAGE> 33
or the Depositary Receipts that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expenses and
liability be furnished. The Deposit Agreement contains various other
exculpatory, indemnification and related provisions, to which reference is
hereby made.
16. Resignation and Removal of Depositary. The Depositary may at
any time (i) resign by written notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment, or (ii) be removed by the
Company effective upon the appointment of a successor Depositary and its
acceptance of such appointment.
17. Termination of Deposit Agreement. The Deposit Agreement may
be terminated only after (i) all outstanding Depositary Shares have been
redeemed or surrendered; or (ii) there shall have been a final distribution
with respect to the Preferred 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 Receipts, or otherwise provided for.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary
with respect to indemnifications, charges and expenses.
18. Governing Law. THIS RECEIPT AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
8
ABBREVIATIONS
The following abbreviations when used in the instruction on the face
of this certificate shall be construed as though they were written out in full
according to applicable laws or regulations.
TENCOM - as tenants in common
TENANT - 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 Gift to Minors Act _________________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________
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 including zip code of assignee)
____
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<PAGE> 34
the within Receipt and all rights and interest represented by the
Depositary Shares evidenced thereby, and do hereby irrevocably
constitute and appoint Attorney to transfer the same 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 THE RECEIPT IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
45130.c2
1/18/94 3:40 pm
10
<PAGE> 1
Exhibit 4.7
DIGITAL EQUIPMENT CORPORATION
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
______________, 1994
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
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<S> <C> <C>
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3 Countersignature of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.4 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANT CERTIFICATES
SECTION 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Duration of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Exercise of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.1 No Rights as Securityholders Conferred by Warrant Certificates . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.4 Call of Warrant by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.5 Optional Reduction of Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.6 Issuance of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.1 Exchange and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4.2 Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4.3 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.2 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.3 Resignation and Appointment of Successor Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Consolidations and Mergers of the Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6.2 Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.3 Merger, Consolidation or Change of Name of Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.4 Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.5 Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.6 Notices to Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.7 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.8 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.9 Persons Having Rights Under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.12 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.14 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
(ii)
<PAGE> 4
From time to time, Digital Equipment Corporation, a Massachusetts
corporation (the "Company"), may enter into one or more warrant agreements that
provide for the issuance and sale of warrants ("Warrants") to purchase debt
securities of the Company ("Debt Securities"). The standard provisions set
forth herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case
may be, terms defined in the Warrant Agreement are used herein as therein
defined and terms defined herein are used in the Warrant Agreement as herein
defined.
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1 ISSUANCE OF WARRANT CERTIFICATES. 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 Debt Security in the principal amount set forth in
the Warrant Agreement.
SECTION 1.2 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
Warrant Certificates shall be signed on behalf of the Company by its President,
a Vice President or its Treasurer and attested by its Secretary or Assistant
Secretary or Clerk or Assistant Clerk, under its corporate seal. Each such
signature upon the Warrant Certificates may be in the form of a facsimile
signature of the current or any future, President, Vice President, Treasurer,
Secretary or Assistant Secretary or Clerk or Assistant Clerk and may be
imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been President, Vice President, Treasurer, Secretary or Assistant
Secretary or Clerk or Assistant Clerk, notwithstanding the fact that at the
time the Warrant Certificates shall be countersigned and delivered or disposed
of such person shall have ceased to hold such office. 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.
If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
<PAGE> 5
SECTION 1.3 COUNTERSIGNATURE OF WARRANT CERTIFICATES. The
Warrant Agent shall, upon receipt of Warrant Certificates, duly executed on
behalf of the Company, countersign the Warrant Certificates evidencing Warrants
to purchase the principal amount of the Debt Securities set forth in the
Warrant Agreement and shall deliver such Warrant Certificates to the
appropriate person or entity upon the order of the Company. After the 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, or in connection with the registration of transfer of, one or
more previously countersigned Warrant Certificates, as hereinafter provided.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_____________________
Authorized Signatory
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION 1.4 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 Certificates 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, 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.
2
<PAGE> 6
ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANT CERTIFICATES
SECTION 2.1 WARRANT PRICE. The exercise price of each Warrant
and any other form of consideration other than lawful money of the United
States of America by which the exercise price may be paid shall be as set forth
in the Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Debt Securities upon exercise of the Warrants is referred
to in this Agreement as the "Warrant Price" and is payable in full at the time
of exercise.
SECTION 2.2 DURATION OF WARRANT CERTIFICATES. The Warrants shall
expire on (a) the close of business on [specify date], or (b) such later date
as shall be determined in the sole discretion of the Company, in a written
statement to the Warrant Agent and with notice to registered holders of
Warrants in the manner provided for in Section 6.5 (such date of expiration
being herein referred to as the "Expiration Date"). On and after the
[specified date], each Warrant may be exercised on any business day on or prior
to the close of business on the Expiration Date. After the close of business
on the Expiration Date, the Warrants will become void and of no value.
SECTION 2.3 EXERCISE OF WARRANT CERTIFICATES.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised by providing certain
information set forth on the reverse side of the Warrant Certificate and,
unless otherwise provided pursuant to Section 2.1, by paying in full (in cash
or by certified or official bank check in New York Clearing House funds or by
bank wire transfer in immediately available funds), in United States dollars,
the Warrant Price for the Debt Securities as to which the Warrant Certificate
is exercised, to the Warrant Agent at its office at the address set forth in
the Warrant Agreement. The payment must specify the name of the holder and the
number of Warrants exercised by such holders. Warrants will be deemed to have
been exercised upon receipt of the Warrant Price, subject to receipt within
five business days thereafter of the Warrant Certificate at the corporate trust
office of the Warrant Agent properly completed and duly executed, the signature
of such holder to be guaranteed by a bank or trust company, by a broker or
dealer which is a member of the NASD or by a member of a national securities
exchange. The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay or deliver to the Company all moneys
and other consideration received by it on the purchase of the Debt Securities
through the exercise of Warrants. Tthe Warrant Agent shall advise the Company
by telex or telecopy at the end of each day as to the Warrant Certificates that
have been exercised and the amount of moneys deposited to its account or the
type and amount of other consideration to be delivered to it.
3
<PAGE> 7
(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 of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Debt 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 the Trustee
shall reasonably require.
(c) A Warrant Certificate may be exercised in part to purchase
Debt Securities only in the denominations authorized pursuant to the indenture
under which the Debt Securities are issued (the "Indenture").
(d) As soon as practicable after receipt of payment of the Warrant
Price and the Warrant Certificate properly completed and duly executed at the
office of the Warrant Agent, the Company shall issue, pursuant to the
Indenture, to or upon the order of the holder of such Warrant Certificate, the
Debt Securities in authorized denominations to which such holder is entitled,
in fully registered form in such name or names as may be directed by such
holder, and if such Warrant Certificate was not exercised in full, upon request
of the holder of a new Warrant Certificate evidencing the number of Warrants
remaining unexercised shall be issued if sufficient time remains prior to the
Expiration Date. Such evidence of Debt Securities shall be deemed to have
been issued and any person so designated to be named therein shall be deemed to
have become the holder of record of such Debt Securities as of the date of the
surrender of such Warrant Certificate duly executed and payment of the Warrant
Price.
(e) The Company will pay all documentary stamp taxes attributable
to the initial issuance of Warrants and of Debt Securities 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 to any transfer involved in the
issue of any Warrant Certificates or any certificates for Debt Securities in a
name other than the registered holder of a Warrant Certificate surrendered upon
the exercise of a Warrant, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been
paid.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.1 NO RIGHTS AS SECURITYHOLDERS CONFERRED BY WARRANT
CERTIFICATES. No Warrant Certificate shall entitle the holder thereof to any
of the rights of a holder of Debt Securities, including the right to receive
the payment of principal of, or interest on, the Debt Securities or to enforce
any of the covenants of the Debt Securities or the Indenture except as
otherwise provided in the Indenture.
4
<PAGE> 8
SECTION 3.2 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT
CERTIFICATES. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of indemnity
reasonably satisfactory to them, 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 for 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 expense (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 constitute 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) any and
all other rights or remedies with respect to the replacement of mutilated,
lost, stolen or destroyed Warrant Certificates.
SECTION 3.3 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Debt Security 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 audit, action or proceeding against the Company to enforce or
otherwise in respect of, his right to exercise his Warrant Certificate in the
manner provided in his Warrant Certificate and in his Agreement.
SECTION 3.4 CALL OF WARRANT BY THE COMPANY. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be established
from time to time in or pursuant to resolutions of the Board of Directors of
the Company or in the Warrant Agreement before the issuance of such Warrants.
Notice of such Call Price, Call Date and Call Terms shall be given to
registered holders of Warrants in writing by the Company or the Warrant Agent.
SECTION 3.5 OPTIONAL REDUCTION OF WARRANT PRICE. Subject to the
limits, if any, established from time to time by the Board of Directors of the
Company or in the Warrant Agreement, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Warrant Price
to such amount (the "Reduced Warrant Price") and
5
<PAGE> 9
for such period or periods of time, which may be through the close of business
on the Expiration Date (the "Reduced Warrant Price Period"), as may be deemed
appropriate by the Board of Directors of the Company. Notice of any such
Reduced Warrant Price and Reduced Warrant Price Period shall be given to
registered holders of Warrants in writing by the Company or the Warrant
Agent. Unless further action is taken by the Company pursuant to this Section
3.5, after the termination of the Reduced Warrant Price Period, the Warrant
Price shall be such Warrant Price that would have been in effect had there been
no reduction in the Warrant Price pursuant to the provisions of this Section
3.5.
SECTION 3.6 ISSUANCE OF DEBT SECURITIES. The Company covenants
that all Debt Securities issued upon exercise of the Warrants have been duly
authorized and will, upon issuance in accordance with the terms of this
Agreement and the Indenture, be duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.1 EXCHANGE AND TRANSFER. Upon surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants and the transfer of Warrants may be registered in
whole or in part; provided that such other Warrant Certificates shall evidence
the same aggregate number of Warrants as the Warrant Certificates surrendered
for exchange or registration of transfer. The Warrant Agent shall keep, at its
office, books in which 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 for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer
duly signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by a bank or trust company, by a broker or dealer
which is a member of the NASD or by a member of a national securities exchange,
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 surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall manually countersign and
deliver to the person or person 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 that will result in the issuance of a Warrant
Certificates evidencing a fraction of a
6
<PAGE> 10
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 Certificates surrendered for such exchange or registration of transfer.
SECTION 4.2 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that, until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder 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 4.3 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
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 canceled 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 lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.1 WARRANT AGENT. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificate and by this Agreement, 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 5.2 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) PERFORMANCE BY THE COMPANY. The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and
7
<PAGE> 11
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or
performing of the provisions of this Agreement.
(b) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay
to the Warrant Agent reasonable compensation for all services rendered by the
Warrant Agent under this Agreement, to reimburse the Warrant Agent upon demand
for all expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Warrant Agent in the performance of its duties under
this Agreement and to indemnify the Warrant Agent and save it harmless against
any and all losses, liabilities and expenses, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
arising out of or in connection with this Agreement except as a result of its
negligence, bad faith or willful misconduct.
(c) AGENT FOR THE COMPANY. The Warrant Agent shall act hereunder
solely as agent for the Company, and its duties shall be determined solely by
the provisions hereof, and the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates. 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 negligence, bad faith or willful misconduct.
(d) COUNSEL. 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 any holder
of any Warrant Certificate 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) DOCUMENT. The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate 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) CERTAIN TRANSACTIONS. The Warrant Agent, and any stockholder,
director, officer or employee thereof, may act as Trustee under the Indenture
and 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 the Company or
otherwise act as fully and freely as though they were not the Warrant Agent
under this Agreement, or a stockholder, director, officer or employee of the
Warrant Agent, as the case may be, and, to the extent permitted by applicable
law, they may act on, or as depositary, trustee or agent for, any committee or
body of holders of the Debt Securities or other obligations of the Company as
freely as if it were not the Warrant Agent. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
8
<PAGE> 12
(g) NO LIABILITY FOR INTEREST. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) NO LIABILITY FOR INVALIDITY AND NO RESPONSIBILITY FOR
REPRESENTATIONS. The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof), nor shall the Warrant Agent by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of the
shares to be issued pursuant to this Agreement or any Warrant Certificate or as
to whether the shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of shares issuable upon
exercise of any Warrant.
(i) NO LIABILITY FOR ACCEPTANCE OF INSTRUCTIONS. The Warrant
Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the President, any Vice President,
the Treasurer, the Secretary or any Assistant Secretary of the Company, and to
apply to such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such officer or in good
faith reliance upon any statement signed by any one of such officers of the
Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(j) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth, but no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. 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 Warrant Certificates shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
or expenses which may be incurred. 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 Warrant Certificates 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 or judgment shall be for the ratable benefit of
the registered holders of the Warrants, as their respective rights or interests
may appear. 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 in the Warrant Certificates or in the case of the receipt
of any written demand from a holder of a
9
<PAGE> 13
Warrant Certificate with respect to such default, including any duty or
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 6.2 hereof, to make any demand
upon the Company.
SECTION 5.3 RESIGNATION AND APPOINTMENT OF SUCCESSOR WARRANT
AGENT. If the Warrant Agent shall resign (such resignation to become effective
not earlier than 60 days after the giving of written notice thereof to the
Company and the registered holders of Warrant Certificates) or shall become
incapable of acting as Warrant Agent or if the Board of Directors of the
Company shall by resolution remove the Warrant Agent (such removal to become
effective not earlier than 30 days after the filing of a certified copy of such
resolution with the Warrant Agent and the giving of written notice of such
removal to the registered holders of Warrant Certificates), 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 so notified in writing of such resignation or incapacity by the Warrant
Agent or by the registered holder of a Warrant Certificate (in the case of
incapacity), then the registered holder of any Warrant Certificate may apply to
any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to the Warrant Agent, either
by the Company or by such a court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether appointed by
the Company or by such a court, shall be in good standing, incorporated under
the laws of any state or of the United States of America. As soon as
practicable after appointment of the successor Warrant Agent, the Company shall
cause written notice of the change in the Warrant Agent to be given to each of
the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register. 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. 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, at the expense of the Company, any further assurance, conveyance, act
or deed necessary for the purpose. Failure to give any notice provided in this
Section 6.5 or any defect therein, shall not affect the legality or validity of
the removal of the Warrant Agent or the appointment of a successor Warrant
Agent, as the case may be.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES,
LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. To the extent
permitted in the Indenture, the Company may consolidate with, or sell or convey
all or substantially all of its assets to, or merge with or into any other
corporation.
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<PAGE> 14
SECTION 6.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case
of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein, and the predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants. Such successor 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
Debt Securities issuable pursuant to the terms hereof. All the Debt Securities
so issued shall in all respects have the same legal rank and benefit under the
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Debt Securities thereafter to be issued as may be appropriate.
SECTION 6.3 MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT. Any corporation into which the Warrant Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation succeeding to the 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 Section 5.3. If, at the time
such successor to the Warrant Agent shall succeed under this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and if at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates 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 Certificates shall have the full force provided in the
Warrant Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
SECTION 6.4 SUPPLEMENTS AND AMENDMENTS. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any holders of Warrant Certificates, to cure any ambiguity,
manifest error or other mistake in this Agreement, or to correct or supplement
any provision contained herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions in
11
<PAGE> 15
regard to matters or questions arising hereunder that the Company and the
Warrant Agent may deem necessary or desirable and that shall not adversely
affect, alter or change the interests of the holders of the Warrant
Certificates.
SECTION 6.5 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 6.6 NOTICES TO COMPANY AND WARRANT AGENT. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Digital Equipment Corporation
111 Powdermill Road
Maynard, MA 01754
Attention: Ilene B. Jacobs, Vice President and Treasurer (MS02-2/F23)
with a copy to Gail S. Mann, Esq., Secretary and Clerk (MS02-3/F13)
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of any change in the location thereof, presentation
may be made and notices and demands may be served at the principal office of
the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 6.7 DELIVERY OF PROSPECTUS. If the Company is required
under applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the Debt
Securities issued upon such exercise, a copy of the prospectus.
SECTION 6.8 OBTAINING OF GOVERNMENTAL APPROVALS. The Company
will from time to time take all action that 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 federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
12
<PAGE> 16
SECTION 6.9 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT.
Nothing in this Agreement is intended, or shall be construed, to confer upon,
or give to, any person or corporation other than the Company, the Warrant Agent
and the holders of the Warrant
Certificate any right, remedy or claim under or by reason of this Agreement or
of any covenant, condition, stipulation, promise or agreement hereof. All
covenants, conditions, stipulations, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and their successor and of the holders of the Warrant
Certificates.
SECTION 6.10 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 6.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 6.12 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.
SECTION 6.13 GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with the laws of such State.
SECTION 6.14 BOARD OF DIRECTORS. All references to any actions to
be taken by the Company's Board of Directors shall be deemed to include actions
taken by either the Company's Board of Directors or an authorized committee
thereof.
13
<PAGE> 1
EXHIBIT 4.8
================================================================================
DIGITAL EQUIPMENT CORPORATION
STANDARD [COMMON STOCK/EXCHANGE SECURITIES] WARRANT
AGREEMENT PROVISIONS
================================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time . . . . . . . . . 1
SECTION 2. Form of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 4. Execution of Warrant Certificates . . . . . . . . . . . . . . . . . . . . 2
SECTION 5. Registration and Countersignature . . . . . . . . . . . . . . . . . . . . 3
SECTION 6. Exchange and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 7. Duration and Exercise of Warrants . . . . . . . . . . . . . . . . . . . . 4
SECTION 8. Call of Warrants by the Company . . . . . . . . . . . . . . . . . . . . . 5
SECTION 9. Optional Reduction of Exercise Price . . . . . . . . . . . . . . . . . . . 5
SECTION 10. Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . 6
SECTION 11. Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . 6
SECTION 12. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 13. Mutilated or Missing Warrant Certificates . . . . . . . . . . . . . . . . 6
[SECTION 14. Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 15. Obtaining of Governmental Approvals and Stock Exchange Listings . . . . . 7
SECTION 16. Adjustment of Exercise Price and Number of Shares of Common
Stock Purchasable or Number of Warrants for Common Stock . . . . . . . . . 8
SECTION 17. Fractional Warrants and Fractional Shares . . . . . . . . . . . . . . . . 11
SECTION 18. Notices to Warrantholders . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 19. Merger, Consolidation or Change of Name of Warrant Agent . . . . . . . . . 13
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 20. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 21 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . 13
SECTION 22. Change of Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 23. Warrantholder Not Deemed a Stockholder . . . . . . . . . . . . . . . . . . 16
SECTION 24. Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 25. Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . 17
SECTION 26. Persons Having Rights Under Warrant Agreement . . . . . . . . . . . . . . 17
SECTION 27. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 28. Notices to Company and Warrant Agent . . . . . . . . . . . . . . . . . . . 17
SECTION 29. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 30. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 31. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 32. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 33. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 34. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 35. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 36. Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
(ii)
<PAGE> 4
From time to time, Digital Equipment Corporation, a Massachusetts
corporation ("the Company"), may enter into one or more warrant agreements that
provide for the issuance and sale of warrants ("Warrants") to purchase shares
of [the Company's common stock, $1.00 par value ("Common Stock")] [securities
issued by another corporation or entity and held by the Company] ("Exchange
Securities")] (such shares of [Common Stock] [Exchange Securities] are
hereinafter referred to as the "Underlying Securities" and, where appropriate,
such term shall also mean the other securities or property purchasable upon the
exercise of the Warrants). The standard provisions set forth herein may be
incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this "Agreement." The person
named as the "Warrant Agent" in the first paragraph of the Warrant Agreement is
herein referred to as the "Warrant Agent." Unless otherwise defined in this
Agreement or in the Warrant Agreement, as the case may be, terms defined in the
Warrant Agreement are used herein as therein defined and terms defined herein
are used in the Warrant Agreement as herein defined.
SECTION 1. NUMBER OF WARRANTS UNLIMITED; ISSUABLE FROM TIME TO
TIME. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(1) the designation of such Warrants, the number of Warrants to be
issued and the initial number and title of Underlying
Securities [and, if Exchange Securities, the issuer thereof]
for which each Warrant shall be exercisable;
(2) if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants
shall be freely tradable separately from such other securities
(the "Distribution Date") and if the Company may at its option
or under circumstances described therein provide for an
earlier Distribution Date;
(3) the Expiration Date pursuant to Section 6;
(4) the Exercise Price and any form of consideration other than
lawful money of the United States of America by which the
Exercise Price may be paid pursuant to Section 6;
(5) the Call Price, Call Date and Call Terms pursuant to Section
7, if any;
(6) the limitations, if any, upon the Reduced Exercise Price and
the Reduced Exercise Price Period pursuant to Section 8;
(7) the circumstances, if any, under which the Exercise Price and
the number of shares of Underlying Securities purchasable upon
the exercise of each Warrant
<PAGE> 5
and the number of Warrants outstanding are subject to
adjustment and the manner of making any such adjustment; and
(8) any additional limitations, modifications or provisions
applicable to the Warrants to be issued.
SECTION 2. FORM OF WARRANT CERTIFICATES. The certificates
evidencing the Warrants (the "Warrant Certificates") to be delivered pursuant
to this Agreement shall be in registered form only. The Warrant Certificates
shall be in substantially such form or forms as shall be established by the
Company from time to time pursuant to one or more resolutions of the Board of
Directors of the Company or in one or more warrant agreements supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. 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 Certificates 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 office of the Warrant
Agent, 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.
SECTION 4. EXECUTION OF WARRANT CERTIFICATES. Warrant
Certificates shall be signed on behalf of the Company by its President, a Vice
President or its Treasurer and attested by its Secretary or Assistant
Secretary, under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the current or any
future President, Vice President, Treasurer, Secretary or Assistant Secretary
and may be imprinted or otherwise reproduced on the Warrant Certificates and
for that purpose the Company may adopt and use the facsimile signature of any
person who shall have been President, Vice
2
<PAGE> 6
President, Treasurer, Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of such person shall have ceased to hold such office.
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.
If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
SECTION 5. REGISTRATION AND COUNTERSIGNATURE. Warrant
Certificates shall be manually countersigned and dated the date of
countersignature by the Warrant Agent and shall not be valid for any purpose
unless so countersigned. The Warrants shall be numbered and shall be
registered in a register (the "Warrant Register") to be maintained by the
Warrant Agent.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_____________________
Authorized Signatory
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION 6. EXCHANGE AND TRANSFER. Upon surrender at the office
of the Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants and
the transfer of Warrants may be registered in whole or in part; provided that
such other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates surrendered for exchange or registration
of transfer. The Warrant Agent shall keep, at its office, books in which it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant
3
<PAGE> 7
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent
at its office 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 surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall mutually countersign and deliver to the person or person 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 that 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
Certificates surrendered for such exchange or registration of transfer.
SECTION 7. DURATION AND EXERCISE OF WARRANTS. The Warrants
shall expire on (a) the close of business on [the date set forth pursuant to
Section 1], or (b) such later date as shall be determined in the sole
discretion of the Company, in a written statement to the Warrant Agent and with
notice to registered holders of Warrants in the manner provided for in Section
16 (such date of expiration being herein referred to as the "Expiration Date").
On and after the [specified date], each Warrant may be exercised on any
business day on or prior to the close of business on the Expiration Date.
After the close of business on the Expiration Date, the Warrants will become
void and of no value.
Subject to the provisions of this Agreement, including Section 14, the
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such holder of a Warrant) [number of]
Underlying Securities, as adjusted pursuant to Sections 14 and 16, at the price
set forth pursuant to Section 1 (such price, as may be adjusted from time to
time as provided in Section 14, being the "Exercise Price") upon depositing
with the Warrant Agent at a Warrant Agent Office the Warrant Certificate
evidencing such Warrant, with the form of election to purchase on the reverse
thereof duly completed and signed by the registered holder or holders thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by a bank or trust company, by a
broker or dealer which is a member of the NASD or by a member of a national
securities exchange, and upon payment of the Exercise Price for the number of
Underlying Securities in respect of which such Warrants are being exercised.
Unless otherwise provided pursuant to Section 1, payment of the aggregate
Exercise Price shall be made in cash or by certified or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds, in United States dollars.
Subject to Section 10, upon such surrender of a Warrant Certificate
and payment of the Exercise Price, [if the Underlying Securities are shares of
Common Stock, the Warrant
4
<PAGE> 8
Agent shall requisition from the Company's stock transfer agent (the "Transfer
Agent") for issuance and delivery] [if the Underlying Securities are shares of
Exchange Securities, the Warrant Agent shall deliver notice to the Company and
the Company shall undertake to have the appropriate number of Exchange
Securities issued and delivered, free and clear of any and all liens, claims,
charges and encumbrances of the Company and of any person claiming through the
Company,] to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate,
a certificate or certificates for the Underlying Securities issuable upon the
exercise of the Warrant or Warrants evidenced by such Warrant Certificate.
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 the
holder of record of such shares of Underlying Securities as of the date of the
surrender of such Warrant Certificate duly executed and payment of the Exercise
Price. The Warrants evidenced by a Warrant Certificate shall be exercisable,
at the election of the registered holder thereof, either as an entirety or from
time to time for a portion of the number of Warrants specified in the Warrant
Certificate. If less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of the Warrants are exercised at any
time prior to the date of expiration for the Warrants, a new Warrant
Certificate or Certificates shall be issued for the remaining number of
Warrants evidenced by the Warrant Certificate so surrendered, and the Warrant
Agent is hereby authorized to countersign the required new Warrant Certificate
or Certificates pursuant to the provisions of Section 5 and this Section 6.
The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay or deliver to the Company all moneys
and other consideration received by it on the purchase of the shares of the
Underlying Securities through the exercise of Warrants.
SECTION 8. CALL OF WARRANTS BY THE COMPANY. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be established
from time to time in or pursuant to resolutions of the Board of Directors of
the Company or in the Warrant Agreement before the issuance of such Warrants.
Notice of such Call Price, Call Date and Call Terms shall be given to
registered holders of Warrants in writing by the Company or the Warrant Agent.
SECTION 9. OPTIONAL REDUCTION OF EXERCISE PRICE. Subject to the
limits, if any, established from time to time by the Board of Directors of the
Company or in the Warrant Agreement, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Warrant Price
to such amount (the "Reduced Warrant Price") and for such period or periods of
time, which may be through the close of business on the Expiration Date (the
"Reduced Warrant Price Period"), as may be deemed appropriate by the Board of
Directors of the Company. Notice of any such Reduced Warrant Price and Reduced
Warrant Price Period shall be given to registered holders of Warrants in
writing by the Company or the Warrant Agent. Unless further action is taken by
the Company pursuant to this Section 9, after the termination of the Reduced
Warrant Price Period, the Warrant
5
<PAGE> 9
Price shall be such Warrant Price that would have been in effect had there been
no reduction in the Warrant Price pursuant to the provisions of this Section 9.
SECTION 10. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
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 canceled 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 lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in a manner satisfactory to the Company.
SECTION 11. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. Every
holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and with every subsequent holder of such
Warrant Certificate that, until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder 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 12. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrants and of the shares
of the Underlying Securities upon the exercise of Warrants; provided, 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 of any Warrant Certificates or
any certificates for the shares of the Underlying Securities in a name other
than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has
been paid.
SECTION 13. MUTILATED OR MISSING WARRANT CERTIFICATES. Upon receipt
by the Company and the Warrant Agent of evidence reasonably satisfactory to
them of the ownership and the loss, theft, destruction or mutilation of the
Warrant Certificate, and of indemnity reasonably satisfactory to them, 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 for 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 expense (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
6
<PAGE> 10
lost, stolen or destroyed Warrant Certificate shall constitute 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) any and all other rights or remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
[SECTION 14. RESERVATION OF SHARES. For the purpose of enabling it to
satisfy any obligation to issue Underlying Securities upon exercise of Warrants
for shares of Common Stock, the Company will at all times through the close of
business on the Expiration Date, reserve out of its aggregate authorized but
unissued or treasury shares of Common Stock,] the number of Underlying
Securities deliverable upon the exercise of all outstanding Warrants for shares
of Common Stock, and the Transfer Agent for such Common Stock is hereby
irrevocably authorized and directed at all times to reserve such number of
authorized and unissued or treasury shares of Common Stock as shall be required
for such purpose. The Company will keep a copy of this Agreement on file with
such Transfer Agent and with every transfer agent for any shares of the
Company's capital stock issuable upon the exercise of Warrants for shares of
Common Stock pursuant to Section 14. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent stock
certificates issuable upon exercise of outstanding Warrants for shares of
Common Stock, and the Company will supply such Transfer Agent with duly
executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 14 reducing the Exercise Price below the then par value (if any) of the
shares of Underlying Securities issuable upon exercise of the Warrants for
shares of Common Stock, the Company will take any corporate action that 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 Underlying Securities
at the Exercise Price as so adjusted.
The Company covenants that all shares of Underlying Securities issued
upon exercise of the Warrants for shares of Common Stock will, upon issuance in
accordance with the terms of this Agreement, be duly and validly issued and
fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and/or holding thereof.]
SECTION 15. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE
LISTINGS. So long as any Warrants for shares of Common Stock remain
outstanding, the Company will take all necessary steps (a) to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and to make filings under federal and state securities acts and
laws, which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the Warrants
for shares of Common Stock and the issuance, sale, transfer and delivery of the
shares of Underlying Securities issued upon exercise of Warrants for shares of
Common Stock, and
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(b) to have the shares of Common Stock, immediately upon their issuance upon
exercise of Warrants, (i) listed on each national securities exchange on which
the Common Stock is then listed or (ii) if the Common Stock is not then listed
on any national securities exchange, listed for quotation on the NASD Automated
Quotations System ("NASDAQ") National Market ("Nasdaq/NNM") or such other
over-the-counter quotation system on which the Common Stock may then be listed.
SECTION 16. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES OF
COMMON STOCK PURCHASABLE OR NUMBER OF WARRANTS FOR COMMON STOCK. Except as may
be otherwise provided in accordance with Section 1, the Exercise Price, the
number of shares of Underlying Securities purchasable upon the exercise of each
Warrant for shares of Common Stock and the number of Warrants for shares of
Common Stock outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock
(including Common Stock) in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of the
shares of the Underlying Securities purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the holder of each Warrant
shall be entitled to receive the kind and number of the shares of the
Underlying Securities or other securities of the Company which such holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior
to the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Common Stock (except as provided in paragraph (a) above
or paragraph (h) below), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Common Stock to which he would have become
entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he would have been entitled to receive at the same
aggregate Exercise Price upon such reorganization or reclassification if his
Warrants had been exercised immediately prior thereto; and in any such case,
appropriate provision (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive and shall be evidenced by
a resolution filed with the Warrant Agent) shall be made for the application of
this Section 14 with respect to the rights and interests thereafter of the
holders of Warrants (including the allocation of the adjusted Exercise Price
between or among shares of classes of capital stock), to the end that this
Section 14 (including the adjustments of the number of shares of Stock or other
securities purchasable and the Exercise Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all
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subsequent exercises of the Warrants for any shares or securities or other
property thereafter deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of the shares of the Underlying Securities purchasable
hereunder shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of the shares of the
Underlying Securities purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this paragraph (c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest cent and
to the nearest one- hundredth of a share of the Underlying Security, as the
case may be.
(d) Whenever the number of the shares of the Underlying Securities
purchasable upon the exercise of each Warrant is adjusted as herein provided
(whether or not the Company then or thereafter elects to issue additional
Warrants in substitution for an adjustment in the number of the shares of the
Underlying Securities as provided in paragraph (f)), the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise
Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of the shares of the Underlying Securities
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of the shares of
the Underlying Securities so purchasable immediately thereafter.
(e) For the purpose of this Section 14, the term "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of Common
Stock, thereafter the number of such other shares so purchasable upon exercise
of each Warrant and the Exercise Price of such shares shall be subject to
adjustment form time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of the Underlying
Securities contained in paragraphs (a) through (d), inclusive, above, and the
provisions of Sections 6, 10, 12, 13(a) and 16, with respect to the shares of
the Underlying Securities, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) and (b) of this Section 14, to adjust the number of
Warrants in substitution for an adjustment in the number of the shares of the
Underlying Securities purchasable upon the exercise of a Warrant. Each of the
Warrants outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of the shares of the Underlying Securities as
immediately prior to such adjustment. Each Warrant held of record prior to
such adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price
in effect prior to adjustment
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of the Exercise Price by the Exercise Price in effect after adjustment of the
Exercise Price. The Company shall notify the holders of Warrants in the same
manner as provided in the first paragraph of Section 16, of its election to
adjust the number of Warrants, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Exercise Price is adjusted or any date
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (f) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 15, the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Warrant Certificates evidencing all the Warrants
to be issued, executed and registered in the manner specified in Sections 4 and
5 (and which may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the notice.
(g) Except as provided in paragraph (a) of this Section 14, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In the case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each holder of a Warrant shall have the right thereafter upon
payment of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. The Company
shall mail by first class mail, postage prepaid, to each holder of a Warrant,
notice of the execution of any such agreement. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 14. The provisions of this
paragraph (h) shall similarly apply to successive consolidations, mergers,
sales or conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in any
such agreement relating either to the kind or amount of shares of stock or
other securities or property receivable upon exercise of Warrants or with
respect to the method employed and provided therein for any adjustments and
shall be entitled to rely upon the provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
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SECTION 17. FRACTIONAL WARRANTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to Section 14(f) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants there shall be paid
to the registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant. For purposes of
this Section 15(a), the current market value of a Warrant shall be the closing
price of one Warrant (as determined pursuant to paragraph (c) below) for the
trading day immediately prior to the date on which such fractional Warrant
would have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 14 in the
number of the shares of the Underlying Securities purchasable upon the exercise
of a Warrant, the Company shall not be required to issue fractional shares upon
exercise of the Warrants or to distribute certificates which evidence
fractional shares. In lieu of fractional shares, there shall be paid to the
registered holders of Warrant Certificates at the time such Warrant
Certificates are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of a share of Stock. For purposes
of this Section 15(b), the current market value of a share of Stock shall be
the closing price of a share of Stock (as determined pursuant to paragraph (c)
below) for the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price,
regular way, or, if no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Warrant or Stock, as the case may be, is not listed or
admitted to trading on such exchange, as reported on the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Warrants or Stock, respectively, is
listed or admitted to trading, or if the Warrants or Stock, as the case may be,
is not listed or admitted to trading on any national securities exchange, as
reported on Nasdaq/NNM or, if the Warrants or Stock, as the case may be, is not
listed or admitted to trading on Nasdaq/NNM, as reported on NASDAQ.
SECTION 18. NOTICES TO WARRANTHOLDERS Upon any adjustment of the
number of the shares of the Underlying Securities purchasable upon exercise of
each Warrant, the Exercise Price or the number of Warrants outstanding pursuant
to Section 14, the Company within 20 calendar days thereafter shall (i) cause
to be filed with the Warrant Agent a certificate of a firm of independent
public accountants of recognized standing selected by the Company (who may be
the regular auditors of the Company) setting forth the Exercise Price and
either the number of the shares of the Underlying Securities purchasable upon
exercise of each Warrant or the additional number of Warrants to be issued for
each previously outstanding Warrant, as the case may be, after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such adjustment was made, which certificate shall be
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conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as part of the
notice required to be mailed under the other provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written
notice of such later Distribution Date, such later Expiration Date, such Call
Price, Call Date and Call Terms and such Reduced Exercise Price and Reduced
Exercise Price Period, as the case may be, to be given as soon as practicable
to the Warrant Agent and to each of the registered holders of the Warrant
Certificates by first class mail, postage prepaid, at such holder's address
appearing on the Warrant Register. In addition to the written notice referred
to in the preceding sentence, the Company shall make a public announcement in a
daily morning newspaper of general circulation in New York City and in Boston
of such earlier Distribution Date, such later Expiration Date, such Call Price,
Call Date and Call Terms and such Reduced Exercise Price and Reduced Exercise
Price Period, as the case may be, at least once a week for two successive weeks
prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution (other than
a cash dividend) to the holders of its shares of Common Stock, or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Stock or securities convertible into shares of
Common Stock or any right to subscribe thereto (other than rights issued
pursuant to the terms of the Stockholders Rights Plan adopted by the Board of
Directors on December 11, 1989, as may be amended from time to time, or any
such other similar stock rights plan adopted by the Board of Directors), or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of all
or substantially all of its property, assets and business as an entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in New York City and Boston of such event, such giving of notice
and publication to be completed at least 10 calendar days (or 20 calendar days
in any case specified in clause (c) above) prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
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date or the date of closing the transfer books, as the case may be. The
failure to give the notice required by this Section 16 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
dissolution, liquidation or winding up or the vote upon or any other action
taken in connection therewith.
SECTION 19. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
Any corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the 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 Section 19. If, at the time such successor to
the Warrant Agent shall succeed under this Agreement, any of the Warrant
Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent; and if at that time any of the Warrant Certificates shall not
have been countersigned, any successor to the Warrant Agent may countersign
such Warrant Certificates 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 Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
SECTION 20. WARRANT AGENT. The Company hereby appoints the Warrant
Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificate and by this Agreement, 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 21. 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):
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(a) PERFORMANCE BY THE COMPANY. The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
(b) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay
to the Warrant Agent reasonable compensation for all services rendered by the
Warrant Agent under this Agreement, to reimburse the Warrant Agent upon demand
for all expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Warrant Agent in the performance of its duties under
this Agreement and to indemnify the Warrant Agent and save it harmless against
any and all losses, liabilities and expenses, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
arising out of or in connection with this Agreement except as a result of its
negligence, bad faith or willful misconduct.
(c) AGENT FOR THE COMPANY. The Warrant Agent shall act hereunder
solely as agent for the Company, and its duties shall be determined solely by
the provisions hereof, and the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates. 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 negligence, bad faith or willful misconduct.
(d) COUNSEL. 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 any holder
of any Warrant Certificate 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) DOCUMENT. The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate 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) CERTAIN TRANSACTIONS. The Warrant Agent, and any stockholder,
director, officer or employee thereof, 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 the Company or otherwise act as fully and freely as though they
were not the Warrant Agent under this Agreement, or a stockholder, director,
officer or employee of the Warrant Agent, as the case may be. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
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(g) NO LIABILITY FOR INTEREST. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) NO LIABILITY FOR INVALIDITY AND NO RESPONSIBILITY FOR
REPRESENTATIONS. The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof), nor shall the Warrant Agent by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of the
shares to be issued pursuant to this Agreement or any Warrant Certificate or as
to whether the shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of shares issuable upon
exercise of any Warrant.
(i) NO LIABILITY FOR ACCEPTANCE OF INSTRUCTIONS. The Warrant
Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the President, any Vice President,
the Treasurer, the Secretary or any Assistant Secretary of the Company, and to
apply to such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such officer or in good
faith reliance upon any statement signed by any one of such officers of the
Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(j) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth, but no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. 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 Warrant Certificates shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
or expenses which may be incurred. 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 Warrant Certificates 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 or judgment shall be for the ratable benefit of
the registered holders of the Warrants, as their respective rights or interests
may appear. 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 in the Warrant Certificates or in the case of the receipt
of any written demand from a holder of a
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Warrant Certificate with respect to such default, including any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or to make any demand upon the Company.
SECTION 22. CHANGE OF WARRANT AGENT. If the Warrant Agent shall
resign (such resignation to become effective not earlier than 60 days after the
giving of written notice thereof to the Company and the registered holders of
Warrant Certificates) or shall become incapable of acting as Warrant Agent or
if the Board of Directors of the Company shall by resolution remove the Warrant
Agent (such removal to become effective not earlier than 30 days after the
filing of a certified copy of such resolution with the Warrant Agent and the
giving of written notice of such removal to the registered holders of Warrant
Certificates), 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 so notified in writing of such
resignation or incapacity by the Warrant Agent or by the registered holder of a
Warrant Certificate (in the case of incapacity), then the registered holder of
any Warrant Certificate may apply to any court of competent jurisdiction for
the appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be in
good standing, incorporated under the laws of any state or of the United States
of America. As soon as practicable after appointment of the successor Warrant
Agent, the Company shall cause written notice of the change in the Warrant
Agent to be given to each of the registered holders of the Warrant Certificates
at such holder's address appearing on the Warrant Register. 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. 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, at the expense of the Company, any further
assurance, conveyance, act or deed necessary for the purpose. Failure to give
any notice provided in this Section 19 or any defect therein, shall not affect
the legality or validity of the removal of the Warrant Agent or the appointment
of a successor Warrant Agent, as the case may be.
SECTION 23. WARRANTHOLDER NOT DEEMED A STOCKHOLDER. Nothing
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the holders thereof the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of the meetings of stockholders or for the election of directors of the Company
or any other matter, or any rights whatsoever as stockholders of the Company.
SECTION 24. DELIVERY OF PROSPECTUS. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the
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delivery of the certificate or certificates for the shares of the Underlying
Securities issued upon such exercise, a copy of the prospectus.
SECTION 25. 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 26. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Agreement is intended, or shall be construed, to confer upon, or give
to, any person or corporation 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 or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
SECTION 27. INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal 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.
SECTION 28. NOTICES TO COMPANY AND WARRANT AGENT. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Digital Equipment Corporation
111 Powdermill Road
Maynard, MA 01754
Attention: Ilene B. Jacobs, Vice President and Treasurer (MS02-2/F23)
with a copy to Gail S. Mann, Esq., Secretary and Clerk (MS02-3/F13)
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of any change in the location thereof, presentation
may be made and notices and demands may be served at the principal office of
the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
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SECTION 29. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to designate Warrants
pursuant to Section 1, to cure any ambiguity, manifest error or other mistake
in this Agreement, or to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
that the Company and the Warrant Agent may deem necessary or desirable and that
shall not adversely affect, alter or change the interests of the holders of the
Warrant Certificates.
SECTION 30. 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 31. TERMINATION. This Agreement shall terminate at the close
of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 18 shall survive such termination.
SECTION 32. GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with the laws of such Commonwealth.
SECTION 33. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 34. COUNTERPARTS. This Agreement shall be exercised in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 35. HEADINGS. The headings of sections of this Agreement
have been inserted for convenience of reference only, are not be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 36. BOARD OF DIRECTORS. All references to any actions to be
taken by the Company's Board of Directors shall be deemed to include actions
taken by either the Company's Board of Directors or an authorized committee
thereof.
18
<PAGE> 1
EXHIBIT 5
TESTA, HURWITZ & THIBEAULT
ATTORNEYS AT LAW
EXCHANGE PLACE, 53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2809
January 21, 1994
Digital Equipment Corporation
146 Main Street
Maynard, Massachusetts 01754
Ladies and Gentlemen:
This opinion is being delivered in connection with the
registration under the Securities Act of 1933 by Digital Equipment
Corporation, a Massachusetts corporation ("Digital" or the
"Corporation"), of: (a) shares of its Preferred Stock, par value
$1.00 per share ("Preferred Stock"), in one or more series; (b)
unsecured debt securities ("Debt Securities"), which may be either
senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities"),
(c) depositary shares of the Corporation (the "Depositary Shares");
(d) warrants to purchase capital stock or Debt Securities of the
Corporation or securities of another entity held by Digital (the
"Warrants") (the Debt Securities, the Preferred Stock, the
Depositary Shares and the Warrants are collectively referred to
herein as the "Securities") having an aggregate initial public
offering price of up to $1,000,000,000 (or the equivalent in one or
more foreign currencies or currency units) pursuant to a
Registration Statement on Form S-3 (the "Registration Statement")
being filed by the Corporation with the Securities and Exchange
Commission. Capitalized terms not otherwise defined herein will
have the meanings set forth in the Registration Statement.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the
following: (a) the Restated Articles of Organization of the
Corporation, as amended (the "Restated Articles"); (b) the By-laws
of the Corporation, as amended; (c) the Indenture relating to the
Senior Debt Securities (the "Senior Indenture") between the
Corporation and Citibank, N.A. (the "Senior Trustee"); (d) the
proposed Form of Indenture relating to the Subordinated Debt
Securities (the "Subordinated Indenture") between the Corporation
and Bankers Trust Company (the "Subordinated Trustee"); (e) the
proposed Form of Deposit Agreement (the "Deposit Agreement"); (f)
the proposed Form of Standard Debt Securities Warrant Agreement; and
(g) the proposed Form of Standard Common Stock/Exchange Securities
Warrant Agreement.
Based upon the foregoing, we are of the opinion that:
1. Digital is a corporation duly organized and validly
existing under the laws of the Commonwealth of Massachusetts.
<PAGE> 2
Digital Equipment Corporation
Page 2
January 21, 1994
2. Assuming that: (a) a valid certificate of designations
fixing the preferences, voting powers, qualifications, and special
or relative rights or privileges and limitations of any series of
Preferred Stock has been validly authorized by appropriate votes of
the Corporation's Board of Directors, or an authorized committee
thereof, and executed and filed in accordance with the Restated
Articles and applicable law, and any securities initially issuable
upon conversion or exchange of the Preferred Stock have been duly
authorized, created, and, if appropriate, reserved for issuance
upon such conversion or exchange; and (b) certificates evidencing
the Preferred Stock have been duly executed and delivered against
receipt of consideration approved by the Corporation which is not
less than the par value of the Preferred Stock, the Preferred Stock
and any securities initially issuable upon conversion or exchange
of the Preferred Stock, when issued and delivered will be duly
authorized, validly issued, fully paid and nonassessable.
3. Assuming that: (a) the Deposit Agreement has been duly
executed and delivered; (b) the applicable amount of Preferred Stock
has been deposited with the Depositary; and (c) Depositary Receipts
representing the Depositary Shares have been duly executed and
delivered in accordance with the Deposit Agreement, and making the
same assumptions with respect to the issuance of Preferred Stock
set forth in the foregoing paragraph (2), the Depositary Shares
will be duly and validly issued and will be entitled to the
benefits of the applicable Deposit Agreement.
4. The Senior Indenture has been duly executed and delivered
by the Corporation and the Senior Trustee. Assuming that: (a) the
terms of the Senior Debt Securities have been determined in
accordance with the Senior Indenture; (b) the Corporation's Board
of Directors, or an authorized committee thereof, has authorized
the creation, issuance and sale of the Senior Debt Securities; (c)
the Senior Debt Securities have been executed and authenticated in
accordance with the terms of the Senior Indenture; (d) the Senior
Debt Securities have been issued, sold and delivered in the manner
and for the consideration stated in the Registration Statement, the
Prospectus Supplement relating thereto and the Senior Indenture,
the Senior Debt Securities will constitute legal, valid and binding
obligations of the Corporation and will be entitled to the benefits
of the Senior Indenture.
5. Assuming that: (a) the Subordinated Indenture has been
duly executed and delivered; (b) the terms of the Subordinated Debt
Securities have been determined in accordance with the Subordinated
Indenture; (c) the Corporation's Board of Directors, or an
authorized committee thereof, has authorized the creation, issuance
and sale of the Subordinated Debt Securities and, if necessary,
reserved the appropriate number of shares of Common
<PAGE> 3
Digital Equipment Corporation
Page 3
January 21, 1994
Stock or securities of another entity held by Digital to be
initially issued upon conversion or exchange of the Subordinated
Debt Securities, (d) the Subordinated Debt Securities have been
executed and authenticated in accordance with the terms of the
Subordinated Indenture, and (e) the Subordinated Debt Securities
have been issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, the Prospectus
Supplement relating thereto and the Subordinated Indenture, the
Subordinated Debt Securities will constitute legal, valid and
binding obligations of the Corporation and the shares of Common
Stock that may be initially issuable upon the conversion of such
Subordinated Debt Securities, when so issued in accordance with the
terms of the Subordinated Indenture and the Subordinated Debt
Securities, will be validly issued, fully paid and nonassessable.
6. Assuming that: (a) one or more warrant agreements
(incorporating the provisions of the Form of Standard Common
Stock/Exchange Securities Warrant Agreement filed as Exhibit 4.8 to
the Registration Statement) under which the Warrants to purchase
capital stock of the Corporation or securities of another entity
held by Digital (the "Equity Warrants") will be issued have been
duly executed and delivered by the Corporation and, if applicable,
a warrant agent; (b) the terms of the Equity Warrants have been
established in accordance with the appropriate warrant agreement;
(c) the Corporation's Board of Directors, or an authorized
committee thereof, has authorized the issuance and sale of the
Equity Warrants and has reserved an appropriate number of shares of
capital stock to be initially issued upon the exercise of the
Equity Warrants and has authorized the sale of any securities of
another entity held by Digital; (d) the certificates representing
Equity Warrants have been executed and authenticated in accordance
with the terms of the appropriate warrant agreement; and (e) the
Equity Warrants have been issued, sold and delivered in the manner
and for the consideration stated in the Registration Statement, the
Prospectus Supplement relating thereto and the appropriate warrant
agreement, the Equity Warrants will constitute legal, valid and
binding obligations of the Corporation and the shares of capital
stock of the Corporation that may be initially issuable upon the
exercise of such warrants, when so issued in accordance with the
terms of the appropriate warrant agreement and against payment of
the exercise price or other consideration set forth therein,
will be validly issued, fully paid and nonassessable.
7. Assuming that: (a) one or more warrant agreements
(incorporating the provisions of the Form of Standard Debt
Securities Warrant Agreement filed as Exhibit 4.7 to the
Registration Statement) under which the Warrants to purchase Debt
Securities (the "Debt Warrants") will be issued have been duly
executed and delivered by the Corporation and, if applicable, a
<PAGE> 4
Digital Equipment Corporation
Page 4
January 21, 1994
warrant agent, (b) the terms of the Debt Warrants have been
established in accordance with the appropriate warrant agreement;
(c) the Corporation's Board of Directors, or an authorized
committee thereof, has authorized the issuance and sale of the Debt
Warrants and has established the terms of the Debt Securities to be
issued upon exercise of the Debt Warrants; (d) the certificates
representing the Debt Warrants have been executed and authenticated
in accordance with the terms of the appropriate warrant agreement;
and (e) the Debt Warrants have been issued, sold and delivered in
the manner and for the consideration stated in the Registration
Statement, the Prospectus Supplement relating thereto and the
appropriate warrant agreement, and making the same assumptions with
respect to the issuance of Debt Securities set forth in the
foregoing paragraphs (4) and (5), the Debt Warrants will constitute
legal, valid and binding obligations of the Corporation and the
Debt Securities that may be issuable upon the exercise of such Debt
Warrants, when so issued in accordance with the terms of the
appropriate warrant agreement (against payment of the exercise
price or other consideration set forth therein) and executed and
authenticated in accordance with the terms of the Senior Indenture
or the Subordinated Indenture, as the case may be, will constitute
legal, valid and binding obligations of the Corporation.
In connection with our opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such
Security, the Registration Statement has been declared effective
and there will not have occurred any change in law affecting the
validity or enforceability of such Security. We have also assumed
that none of the terms of any Security to be established subsequent
to the date hereof nor the issuance and delivery of such Security,
nor the conversion of such security into another security, nor the
exercise of any right under such Security to acquire another
security, nor the compliance by the Corporation with the terms of
such Security, will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then
binding upon the Corporation or any restriction imposed by any
court or governmental body having jurisdiction over the
Corporation.
In addition, we express no opinion as to: (i) the effect of
applicable bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization or other laws of general applicability relating to or
affecting creditors' rights; (ii) the effect of any general
principles of equity; and (iii) the legality of any security issued
by an entity other than the Corporation.
This opinion is limited to the laws of the Commonwealth of
Massachusetts and the federal laws of the United States of America,
without reference to choice of law provisions.
<PAGE> 5
Digital Equipment Corporation
Page 5
January 21, 1994
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the filing of
the Registration Statement referred to above. We also consent to
the use of our name in the related prospectus and any prospectus
supplement under the heading "Legal Matters".
Very truly yours,
TESTA HURWITZ & THIBEAULT
<PAGE> 1
<TABLE>
EXHIBIT 12
DIGITAL EQUIPMENT CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
------------------------------------------------------------- --------------------------
JULY 3, JUNE 27, JUNE 29, JUNE 30, JULY 1, JANUARY 1, DECEMBER 26,
1993 1992 1991 1990 1989 1994 1992
--------- ---------- --------- -------- --------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes
and cumulative effect of
change in accounting
principle................ $(224,307) $(2,078,012) $(519,720) $123,989 $1,420,675 $(163,590) $ (316,405)
--------- ----------- --------- -------- ---------- --------- -----------
Interest deemed to be
included in rental
expense(a)............... 167,698 181,604 178,386 170,684 150,693 71,528 86,022
Interest expense --
other.................... 55,384 38,517 44,556 30,641 39,435 40,597 16,344
--------- ---------- --------- -------- --------- --------- -----------
Fixed charges as defined... (1) 223,082 220,121 222,942 201,325 190,128 112,125 102,366
--------- ---------- --------- -------- --------- --------- -----------
Earnings before income
taxes and cumulative
effect of change in
accounting principle plus
fixed charges defined.... (2) $ (5,772) $(1,857,891) $(296,778) $325,314 $1,610,803 $ (57,028) $ (214,039)
--------- ----------- --------- -------- ---------- --------- -----------
--------- ----------- --------- -------- ---------- --------- -----------
Ratio of earnings to fixed
charges (2) / (1)(b)..... (c) (d) (e) 1.6x(f) 8.5x (g) (h)
<FN>
- ---------------
(a) Based on one-third of all rental expense, excluding rent on capitalized
leases (being deemed representative of the interest factor in rental
expense).
(b) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consists of income before income taxes and "fixed charges."
"Fixed charges" include interest on indebtedness and one-third of all rental
expense, excluding rent on capitalized leases (being deemed representative
of the interest factor in rental expense).
(c) Earnings were inadequate to cover fixed charges by $229 million.
(d) Earnings were inadequate to cover fixed charges by $2,078 million and by
$578 excluding restructuring charges.
(e) Earnings were inadequate to cover fixed charges by $519 million; the ratio
would have been 3.6x excluding restructuring charges.
(f) The ratio would have been 4.3x excluding restructuring charges.
(g) Earnings were inadequate to cover fixed charges by $169 million.
(h) Earnings were inadequate to cover fixed charges by $316 million.
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement on form S-3 of
our reports dated July 28, 1993, on our audits of the financial statements and
financial statement schedules of Digital Equipment Corporation. We also consent
to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
Boston, Massachusetts
January 21, 1994
<PAGE> 1
EXHIBIT 25
UNITED STATES
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
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b)(2)______
_______________________
<TABLE>
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
<S> <C>
NEW YORK 13-4941247
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
</TABLE>
------------------------
<TABLE>
DIGITAL EQUIPMENT CORPORATION
(Exact name of obligor as specified in the charter)
<S> <C>
MASSACHUSETTS 04-2226590
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
146 MAIN STREET
MAYNARD, MASSACHUSETTS 01754-25711
(Address of principal (Zip Code)
executive offices)
</TABLE>
____________________________________________
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
-2-
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
<TABLE>
(a) Name and address of each examining or
supervising authority to which it is subject.
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Federal Reserve Bank (2nd District) New York, N.Y.
Federal Deposit Insurance Corporation Washington,D.C.
New York State Banking Department Albany, N.Y.
</TABLE>
(b) Whether it is authorized to exercise
corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEMS 3. - 15.
Not Applicable.
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June 23,
1992 - Incorporated herein by reference to Exhibit 1 filed with
Form T-1 Statement, Registration No. 33-48267.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed with
Form T-1 Statement, Registration No. 33-21047.
<PAGE> 3
-3-
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, dated
as amended on January 21, 1992. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 33-48267.
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
EXHIBIT 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of September 30, 1993 - (Copy
attached).
EXHIBIT 8 - Not Applicable
EXHIBIT 9 - Not Applicable
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Bankers Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 20th day of January 1994.
BANKERS TRUST COMPANY
By:Susan Johnson
--------------------
Susan Johnson
Assistant Vice President
<PAGE> 5
<TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
- --- Schedule RC, Balance Sheet ---------------------------------------
ASSETS
<S> <C> <C> <C>
RCFD0081 Cash and balances due, noninterest-bearing balances & currency & coin 1,750,000
RCFD0071 Cash and balances due, interest-bearing balances 2,595,000
RCFD0390 Securities 4,514,000
RCFD0276 Federal funds sold 1,901,000
RCFD0277 Securities purchased under agreements to resell 366,000
RCFD2122 Loans and leases, net of unearned income 16,851,000
RCFD3123 Less: allowance for loan and lease losses 1,412,000
RCFD3128 Less: allocated transfer risk reserve 0
RCFD2125 Loans and leases, net of unearned income, allowance, and reserve 15,439,000
RCFD2146 Assets held in trading accounts 30,848,000
RCFD2145 Premises and fixed assets (including capitalized leases) 684,000
RCFD2150 Other real estate owned 269,000
RCFD2130 Investments in unconsolidated subsidiaries and associated companies 158,000
RCFD2155 Customers' liability to this bank on acceptances outstanding 522,000
RCFD2143 Intangible assets 11,000
RCFD2160 Other assets 8,516,000
RCFD2170 Total assets 67,573,000
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
3
<PAGE> 6
<TABLE>
Schedule RC -- Continued
<S> <C> <C> <C>
RCON2200 Deposits in domestic offices 8,459,000
RCON6631 Noninterest-bearing deposits, domestic 2,923,000
RCON6636 Interest-bearing deposits, domestic 5,536,000
RCFN2200 Deposits in foreign offices, Edge & Agreement subsidiaries, and IBFs 14,096,000
RCFN6631 Noninterest-bearing deposits, foreign 645,000
RCFN6636 Interest-bearing deposits, foreign 13,451,000
RCFD0278 Federal funds purchased 10,461,000
RCFD0279 Securities sold under agreements to repurchase 440,000
RCON2840 Demand notes issued to the U.S. Treasury 0
RCFD2850 Other borrowed money 14,625,000
RCFD2910 Mortgage indebtedness and obligations under capitalized leases 6,000
RCFD2920 Bank's liability on acceptances executed and outstanding 522,000
RCFD3200 Subordinated notes and debentures 1,277,000
RCFD2930 Other liabilities 13,985,000
RCFD2948 Total liabilities 63,871,000
RCFD3282 Limited-life preferred stock and related surplus 0
RCFD3838 Perpetual preferred stock and related surplus 250,000
RCFD3230 Common stock 702,000
RCFD3839 Surplus (exclude all surplus related to preferred stock) 498,000
RCFD3632 Undivided profits and capital reserves 2,566,000
RCFD0297 Less: Net unrealized loss on marketable equity securities 0
RCFD3284 Cumulative foreign currency translation adjustments -314,000
RCFD3210 Total equity capital 3,702,000
RCFD3300 Total liabilities, limited-life preferred stock, and equity capital 67,573,000
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1992 RCFD 6724 N/A
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank seperately)
3 = Director's examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Director's examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
_____________
(1) includes total demand deposits and noninterest-bearing time and savings
deposits.
4
